Cannabis has been decriminalized and/or legalized in many states across the United States. However, cannabis lawyers continue to have their hands full because criminal charges related to the possession, consumption, cultivation, distribution, and sale of marijuana are filed every day in both Federal and State court. Attorney Kocot is a full-service cannabis lawyer that offers marijuana criminal defense services across the entire State of California.

California Law’s Definition of “Cannabis”

An understanding of California law’s definition of “cannabis” which is used interchangeably herein with “marijuana” critical to understanding your rights. “Cannabis” is defined as:

Cannabis means all or part of the Cannabis sativa L. plant, whether
growing or not, including the seeds and resin extracted from any part of
the plant. It also includes every compound, manufacture, salt,
derivative, mixture, or preparation of the plant, its seeds, or resin.

CALCRIM No. 2370

Federal Marijuana Law vs. State Marijuana Law

Despite cannabis decriminalization and/or legalization at the State level in many States across the country, the possession, cultivation, distribution, and sale of cannabis remains illegal under Federal Law due to its status as a Schedule One drug under the Controlled Substances Act. Because Federal law “wins” when Federal and State Law conflict, an individual or business can still be prosecuted for possessing, consuming, cultivating, distributing, or selling marijuana in a State that has decriminalized and/or legalized cannabis.

Cannabis Decriminalization vs. Cannabis Legalization

Decriminalization of marijuana refers to the removal or reduction of criminal penalties related to the possession, consumption, cultivation, distribution, or sale of marijuana. Legalization of marijuana also refers to the removal of criminal penalties, but also allows marijuana to be regulated for legal personal and commercial purposes. Whether you find yourself in a decriminalized or legalized jurisdiction, here are two things to remember:

  1. You can still be charged with a cannabis crime in Federal Court since Federal cannabis Law “wins” when it conflicts with State Law, and
  2. There still may be conduct related to cannabis possession, consumption, cultivation, distribution, or sale of marijuana that could result in civil or criminal penalties.

It’s critical that you speak with a cannabis lawyer who knows the law, as well as the most effect defenses given your circumstances.

Criminal Charges, Penalties, and Defenses Marijuana Lawyers should consider in California

Attorney Kocot has defended against just about every criminal charge related to marijuana as a marijuana lawyer. Below, you will find a list of the most common cannabis criminal charges filed in California, as well the defenses that any effective cannabis lawyer should consider.

A. Marijuana Possession in California

1. HS §11357: Possession of Cannabis & Concentrated Cannabis

HS 11357 deals with the unlawful possession of cannabis and concentrated cannabis, and are common charges handled by California cannabis lawyers. In short, it is illegal to possess more than 28.5 grams of marijuana, or more than 8 grams of concentrated cannabis in California.

Defining “Concentrated Cannabis”

“Concentrated Cannabis” is defined by California law as:

Concentrated cannabis means the separated resin, whether crude or
purified, from cannabis.

CALCRIM No. 2364

Punishment for Possession of Marijuana & Concentrated Marijuana in California

The punishment for possession of more than 28.5 grams of cannabis or more than 8 grams of concentrated cannabis is a misdemeanor with a maximum of 6 months in the county jail and a $500 fine for offenders 18 years of age or older. Similarly, possession of any amount of cannabis or cannabis concentrates on school grounds during school hours is punishable as a misdemeanor.

Defenses

A cannabis lawyer should consider the following defenses when defending against cannabis possession charges:

  1. Health and Safety Code Section(s) 11362.5 and 11362.775 provide an affirmative defense to HS 11357 charges if the cannabis was authorized under the Compassionate Use Act.[4]  In order to utilize this defense, the defendant must show that they are an authorized patient or primary caregiver for a patient via a physician’s recommendation.  Only an amount of marijuana “reasonably related to the patient’s current medical needs” is permissible.[5]  Usually, a showing of a medical marijuana recommendation or approval is sufficient to shift the burden to the Prosecution to prove beyond a reasonable doubt that the defendant was not authorized to possess or cultivate cannabis for medical purposes. 
  2. A cannabis lawyer should pay close attention to whether or not the police officers legally entered the area where the cannabis was located.  A pre-trial motion under Penal Code 1538.5 should be considered if there is any question about the constitutionality of the contact, particularly if the police did not have a warrant. 
  3. Pay very close to what the police write in their reports, and the pictures/videos taken, when describing the plants that are found.  As seen above, the definition of “marijuana” is broad and specific at the same time.  Make sure what was recovered by the police falls under the definition of “marijuana.”
  4. Challenging the method by which the cannabis was weighed.  Did the calculated weight include anything other than the plant itself (baggies, etc.)?

[1] https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=11357.&lawCode=HSC

[2] Calcrim 2375

[3] CalCrim 2370

[4] CalCrim 3412

[5] CalCrim 3412

B. Marijuana Cultivation in California

1.HS §11358: Cultivation of Cannabis

HS 11358 penalizes anyone 18 years of age or older who plants, cultivates, harvests, dries, or processes more than 6 living cannabis plants. Therefore, this statute penalizes activities that extend beyond growing merely cannabis and extends to processing cannabis.

Punishment for Possession of Marijuana & Concentrated Marijuana in California

The punishment for HS 11358 is a misdemeanor with a maximum of 6 months in the county jail and a $500 fine for offenders 18 years of age or older. Sentencing enhancements may occur under Penal Code 1170(h) if:

  • the defendant has qualifying prior convictions
  • if the offense resulted in the violation of a number of environmental laws.

Defenses

A cannabis lawyer should consider the following defenses when defending against cannabis cultivation charges:

  1. Health and Safety Code Section(s) 11362.5 and 11362.775 provide an affirmative defense to HS 11358 charges if the cannabis was authorized under the Compassionate Use Act.[3]  In order to utilize this defense, the defendant must show that they are an authorized patient or primary caregiver for a patient via a physician’s recommendation.  Only an amount of marijuana “reasonably related to the patient’s current medical needs” is permissible.[4]  Usually, a showing of a medical marijuana recommendation or approval is sufficient to shift the burden to the Prosecution to prove beyond a reasonable doubt that the defendant was not authorized to possess or cultivate cannabis for medical purposes. 
  2. Cannabis lawyers should pay close attention to whether or not the police officers legally entered the area where the cannabis was located.  A pre-trial motion under Penal Code 1538.5 should be considered if there is any question about the constitutionality of the contact, particularly if the police did not have a warrant. 
  3. Pay very close to what the police write in their reports, and the pictures/videos taken, when describing the plants that are found.  As seen above, the definition of “marijuana” is broad and specific at the same time.  Make sure what was recovered by the police falls under the definition of “marijuana.”
  4. Challenging the method by which the cannabis was weighed.  Did the calculated weight include anything other than the plant itself (baggies, etc.)?

[1] CalCrim 2370

[2] CalCrim 2370

[3] CalCrim 3412

[4] CalCrim 3412

C. HS §11359: Possession of Cannabis with the Intent to Sell

HS 11359 deals with the unlawful possession of marijuana for sale.

Punishment for Possession of Cannabis with the Intent to Sell in California

The punishment for HS 11359 is a misdemeanor with a maximum of 6 months in the county jail and a $500 fine for offenders 18 years of age or older.

Defenses

A cannabis lawyer should consider the following defenses when defending against cannabis posession with intent sell charges:

  1. Health and Safety Code Section(s) 11362.5 and 11362.775 provide an affirmative defense to HS 11358 charges if the cannabis was authorized under the Compassionate Use Act.[3]  In order to utilize this defense, the defendant must show that they are an authorized patient or primary caregiver for a patient via a physician’s recommendation.  Only an amount of marijuana “reasonably related to the patient’s current medical needs” is permissible.[4]  Usually, a showing of a medical marijuana recommendation or approval is sufficient to shift the burden to the Prosecution to prove beyond a reasonable doubt that the defendant was not authorized to possess or cultivate cannabis for medical purposes. 
  2. A cannabis lawyer should pay close attention to whether or not the police officers legally entered the area where the cannabis was located.  A pre-trial motion under Penal Code 1538.5 should be considered if there is any question about the constitutionality of the contact, particularly if the police did not have a warrant. 
  3. Pay very close to what the police write in their reports, and the pictures/videos taken, when describing the plants that are found.  As seen above, the definition of “marijuana” is broad and specific at the same time.  Make sure what was recovered by the police falls under the definition of “marijuana.”

[1] CalCrim 2352

[2] CalCrim 2370

[3] CalCrim 3412

[4] CalCrim 3412

D. Marijuana Sales in California

1.HS §11360: Cannabis Sales

HS 11360 penalizes anyone who illegally “transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport any cannabis.”

Punishment for Cannabis Sales and/or Transport in California

The punishment for HS 11360 is a misdemeanor with a maximum of 6 months in the county jail and a $500 fine for offenders 18 years of age or older.

Defenses

A cannabis lawyer should consider the following defenses when defending against cannabis sales charges:

  1. Health and Safety Code Section(s) 11362.5 and 11362.775 provide an affirmative defense to HS 11358 charges if the cannabis was authorized under the Compassionate Use Act.[3]  In order to utilize this defense, the defendant must show that they are an authorized patient or primary caregiver for a patient via a physician’s recommendation.  Only an amount of marijuana “reasonably related to the patient’s current medical needs” is permissible.[4]  Usually, a showing of a medical marijuana recommendation or approval is sufficient to shift the burden to the Prosecution to prove beyond a reasonable doubt that the defendant was not authorized to possess or cultivate cannabis for medical purposes. 
  2. A cannabis lawyer should pay close attention to whether or not the police officers legally entered the area where the cannabis was located.  A pre-trial motion under Penal Code 1538.5 should be considered if there is any question about the constitutionality of the contact, particularly if the police did not have a warrant. 
  3. Pay very close to what the police write in their reports, and the pictures/videos taken, when describing the plants that are found.  As seen above, the definition of “marijuana” is broad and specific at the same time.  Make sure what was recovered by the police falls under the definition of “marijuana.”

[1] Calcrim 2350

[2] CalCrim 2370

[3] CalCrim 3412

[4] CalCrim 3412

Contact Attorney Kocot, a Cannabis Lawyer With a Proven Track Record, For a Free Consultation

If you have been charged with a cannabis-related crime, contact Kocot Law at 916-572-6455 for a free consultation. Attorney Kocot is a cannabis lawyer with a proven track record, and will help you mount the best defense possible based on the facts of your case.

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