Marijuana Attorney

Santa Clara Law Enforcement Bust Marijuana Grow Operation (CA Health and Safety Code 11358)

Although there have been big changes nationwide in the past few years when it comes to the question of marijuana, it is important to note that there are still a large number of law enforcement agents who make it their business to eliminate the use, distribution, and growth of the illegal plant. One of these groups is the Santa Clara County Sheriff’s Department’s “Marijuana Eradication Team.” It’s a strange name, but accurate. Deputies from this particular team were dispatched to a suspected grow site near Alum Rock Park. A raid was carried out in the early morning hours this past Friday and ended in only 1 arrest, though the media has called it a ‘big pot bust.’ 2 other individuals managed to escape the team. There is no word yet on how many plants the ‘large’ grow operation actually consisted of.

Most folks are at least a bit familiar with California’s basic laws concerning the possession, sale, distribution, and growth of marijuana. Simply possessing a small amount of marijuana for personal use could end in a $100 fine, court costs, and no criminal record. However, teams such as the one mentioned above still go after what they consider to be problematic large marijuana growing operations.

Under California’s Health and Safety Code 11358, it is illegal to cultivate marijuana in the state, unless authorized to do so for medicinal purposes. Not only is it unlawful to grow anything but medical marijuana, it is always a felony. This particular section of the law covers growing, planting, processing, drying, or harvesting the plant. If convicted, the individual arrested in Friday’s raid could be looking at severe penalties. For a first conviction, it is possible to spend up to 3 years in county jail. Nonetheless, it is possible to argue for a lesser sentence or no jail time, if you enter into a drug treatment program and are not a violent offender.

3 Men Arrested on Charges of Felony Marijuana Cultivation and Sales (CA Health and Safety Code 11358)

Law enforcement officials in Hayward are calling the 44,000 square foot grow house they discovered a ‘marijuana factory.’  This is, perhaps, due to the fact that they managed to confiscate approximately 13,000 plants, valued at about $15 million, at the location on Diablo Avenue.  Three different men, ranging in age from 21 to 28, were arrested on charges of felony marijuana cultivation and felony marijuana sales.

Although California has somewhat reasonable laws when it comes to the personal use and possession of marijuana (it is merely an infraction to possess 2.5 grams or less and the penalty is a mere $100 fine), state penalties are, conversely, far harsher when it comes to illegal cultivation.  Barring laws that allow for the cultivation of a small number of marijuana plants allowable for medical marijuana patients, their caregivers, and grow cooperatives, the cultivation of any amount of marijuana is considered a felony in the state of California.

The California Health and Safety Code 11358  (‘marijuana cultivation’) deems it illegal to participate in any part of the process of growing a marijuana plant, including preparing it for use.  Furthermore, you need not actually plant, harvest, cultivate, or process marijuana to be considered guilty of this crime.  For example, if you own the property on which marijuana is being cultivated, and are aware of its presence, you could be considered in violation of this law.  If you are found guilty of a first offense related to marijuana cultivation, you are likely to spend anywhere from 16 months to 3 years in a county facility.


Louisiana Changes Medical Marijuana Law

In a surprising turn a Louisiana legislative panel, medical marijuana dispensaries may eventually be available for patients in the state.  Unlike California, where patients have had access to medical marijuana in various forms since the Compassionate Use Act of 1996 and Medical Marijuana Program Act of 2003, and Colorado, where marijuana for medical and recreational purposes was fully legalized last year, Louisiana’s potential new medical marijuana law would be comparatively restrictive.

There is already a strange gap in the law.  Although the Louisiana legislature passed a law in 1991 that allows medical marijuana, patients have had no way to gain access to it legally.  In other words, doctors can prescribe it, patients can use it, but they cannot buy it legally.  Now, lawmakers are trying to change that, and it seems that they might finally be successful (Louisiana Senate Bill 143).

In California, the first state in the union to legally allow for medical marijuana usage (Prop 215), patients are able to use, possess, and grow marijuana for medical usage.  It requires that patients are recommended by their physician for such usage, but not that they acquire an official ID card, although this oftentimes can assist patients if they fall under the scrutiny of law enforcement agents (CA Health and Safety Code 11357-11362.9).

California law dictates that there are no limits specified for medical marijuana possession; home cultivation is also allowed and no limits are specified here either.  While the state of California allows for medical marijuana to be prescribed for a number of physiological conditions, Louisiana law will only take glaucoma, spastic quadriplegia, and chemotherapy-related conditions to be covered under the possible new law.

Santa Rosa Man Arrested for Marijuana Possession, Sale and Manufacturing of Hash Oil (CA Penal Code 11357-11362)

In a particularly strange case, a man from Santa Rosa has recently been arrested on several different and seemingly unconnected charges, that of possession of marijuana, sale of marijuana, operating a hash lab (CA Penal Code 11357-11362), and hit-and-run with injuries.  Evidently, police searched the 32-year-old’s home just after he’d purportedly collided into a random home and into an 11-year-old boy’s bedroom.  After fleeing the scene, investigators were able to identify the vehicle, a red Dodge pickup, and find its owner.  This led them to the Santa Rosa man’s home, where they discovered a secret hash lab.  He was peacefully arrested at the Novato home of a relative.

Oftentimes, the suspicion of one crime will lead to the discovery of another, as has definitely been the case for the man above.  First, as the hit-and-run caused injuries to the young boy (he was tossed by the force of the impact of the crash), it will likely be treated as a felony charge.  Normally, hit-and-runs are considered ‘wobblers’ in California law (meaning that prosecutors decide, based on the facts of a particular case, whether or not they will treat a particular instance as a misdemeanor or as a felony).  Penalties upon conviction under CA Vehicle Code 20001 when injury is involved may include up to 4 years in prison and a $10,000 fine.

Of course, the charges relating to the possession of marijuana, its sale, and allegedly operating a hash lab will be treated separately.  Depending upon how much marijuana was found in the man’s home, he could face (with intent to distribute) up to 3 years in state prison.  Simply for having sold marijuana, an individual could spend to 4 additional years in prison.  Chemically manufacturing hash may add an further maximum of 7 years in prison, with fines as high as $50,000.


California Law Governing Medical Marijuana Dispensaries (CA Health and Safety Code 11357)

Recently, you may have read about how so-termed ‘pot clubs’ (medical marijuana dispensaries and/or grow collectives) in the Bay area have been building a positive name for themselves by contributing financially to gun buybacks.  Unlike the state of Colorado, which has passed laws making the use of marijuana legal for both medical and recreational use, only medical marijuana is legal in California, and only under certain conditions.  Since pot clubs are making an attempt to be seen in a better light, it might be timely to remind readers of the California laws governing medical marijuana and its distribution to patients.

Marijuana that is used for medical purposes has been legal in California since 1996 when voters passed the Compassionate Use Act (Proposition 215 & CA Health & Safety Code 11362.5), which effectively made medical marijuana legal.  Most Californians are aware that, in order to grow marijuana for personal, medical use, you must first get a prescription from a legitimate doctor, then pay a fee to receive your medical marijuana identification card.  Once in possession of this card, you are allowed to grow as much marijuana as you reasonably need, at your doctor’s recommendation, to treat whatever medical issue is plaguing you.

However, growing one’s own marijuana can be time-consuming and complex, it’s evidently not like growing tomatoes in your spring garden!  So, many people have developed marijuana grow cooperatives.  These cooperatives (or ‘collectives’) allow persons to grow their medical marijuana plants together in the same area.  You do not even have to participate fully in the cultivation of your own plants; as long as the cooperative does not grow more marijuana than is allowed by prescription to its members (Attorney General’s guidelines or Senate Bill 40).  In general, collectives are only defined by state law and must be officially incorporated.  Of course, though the federal government makes the cultivation of any amount of marijuana plants a felony, and though they have made promises not to prosecute individuals who have medical marijuana permissions within their own state, there is always the possibility of harassment or arrest for marijuana possession (CA Health and Safety Code 11357).


Brentwood Stunt Biker Charged with Felony Marijuana Possession, Cultivation and Sale (CA Health and Safety Code 11357-11362)

32-year-old ‘stunt biker’ of Brentwood was arrested recently for evasion of a CHP officer, marijuana cultivation, and having a firearm nearby while cultivating marijuana.  It seems that a California Highway Patrol Officer attempted to stop a group of approximately 50 motorcyclists who were travelling on Highway 680 in San Jose on October 11th of this year.  The officer believed the motorcyclists to be both driving irresponsibly (popping wheelies and standing on their bikes while in motion) and going over the posted speed limit.  Perhaps the cyclists were simply having too good a time together or perhaps they did not take the officer’s warnings seriously, but the officer has stated that they simply waved him off, ignoring him completely.

This incident sparked what reports are calling a full on “hunt” to find motorcyclists who accompanied the stunt biker, who recorded the entire thing on his head-mounted camera and then posted it on social media sites, on the now infamous ride.  For the stunt biker, this has meant that officers obtained a warrant to search his home; they found a loaded rifle and about 90 marijuana plants at the residence.

There are two things that stick out about this particular story.  First, the law concerning ‘obstruction’ or ‘delay’ of a peace officer is very vague (CA Penal Code 148) often known as ‘resisting arrest.’ This law is meant to protect citizens from having law enforcement officials’ course of duty delayed or obstructed.  Certainly, when citizens need police presence, they should be able to do their duty without being unduly kept from it.  However, as seems to be the case in the above situation, the officer decided to subjectively view the stunt biker and his companions’ behavior as ‘disrespect’ or ‘obstruction.’  Conviction of a violation of CA PC 148 means facing misdemeanor penalties, including up to 1 year in county jail and a $1,000 fine.  In addition, he faces felony drug charges of marijuana possession, cultivation and sale (CA Health and Safety Code 11357 – 11362)


Mendocino: Pot Farms Raided by Unknown Groups (CA Health and Safety Code 11357-11362)

Something strange has been happening to pot growers in Mendocino County.  Local law enforcement officials chalk it up to late-season paranoia, but residents think differently.  It seems that some group of people in helicopters have been conducting raids on pot gardens, unbeknownst to the police.  Sheriff Allman was called out to Layton last month to meet with about 100 citizens who complained about the circumstances.  The local paper, the Santa Rosa Press Democrat, reported that there was one incident in which several men descended from a helicopter and destroyed over 4-dozen plants.  One of the men was said to have had police markings on the clothes he wore.  Officials say that no illegal or suspicious raids have occurred, but that local property owners can legally hire others to destroy plants they see fit to.

In Mendocino County, it is legal to grow 25 plants per parcel of land in an outdoor garden and 100 plants per 100 square feet inside (See Ordinance No. 4326. Adopted in February of this year).  The concern seems to be the possible intervention from the federal government, which still considers possession, growth, or distribution of any amount of marijuana to be illegal. (CA Health and Safety Code 11357-11362) There is no proof that the men in helicopters or other strangers who have conducted these raids have anything to do with local or federal law enforcement, but it has made Mendocino County pot growers, legal or otherwise, quite nervous and left wondering what, if anything, there is to be done about these reports.


Windsor Couple Charged with Possession with Intent to Sell Marijuana (CA Health and Safety Code 11358, 11359, 11364)

John Doe (27) and his girlfriend (also 27) (names withheld in order to protect the privacy of the accused) were arrested recently in Windsor when police visited their home on Pedroncelli Drive to conduct a routine probation search.  It seems that though he knew the terms of his probation, but was willing to take the risk of growing marijuana in his back yard in plain sight of anyone passing by, including law enforcement officials.  When the officers entered the home, they found various loaded weapons and a small fridge laden with marijuana lollipops, jerky, popcorn, and muffins.  These were all within the easy reach of the couple’s 2 and 4-year-old children, some of it placed with their toys.  In addition, there was a 100-plant grow room, 40 plants in the back yard area, pot that had already been processed, and a lab for creating butane hash oil.  He was arrested on charges of marijuana cultivation and sales, possession, violating his probation, child endangerment, and possession of a firearm during the commission of a felony, and operating a hash oil laboratory.  On the other hand, she was arrested for child endangerment and for having tried to obstruct an investigation by an officer.

Child endangerment laws (CA Penal Code 273a) carry severe penalties.  If you are convicted of such a charge, you could spend up to 6 years in state prison and pay a $10,000 fine, depending on how much harm the child, or children, were placed in.  On the other hand, the possession of any amount of marijuana is considered a felony in California, especially if the police can find evidence that you intend to sell it or have sold it (CA Health and Safety Code 11358, 11359, 11364, and CA Penal Code 1000).  If you are caught with more than 28.5 grams of marijuana, you may only face 6 months in county jail and a $500 fine.  However, if there are sales involved, you will spend a minimum of 2 years and a maximum of 4 years in state prison.  Distribution, additionally, will end in up to 3 years in prison.  The possession of hash and other marijuana concentrates could also end in 1 year in prison and a $500 fine.


Richmond High School Student Charged with Sales of Marijuana to Minors Pot Brownies (CA Health and Safety Code 11361)

Bake sales are a common occurrence, even at the high school level.  They are often used to raise money for some school project or another.  However, one girl may have taken the idea too far.  An unnamed 17-year-old senior at De Anza High School in Richmond found herself charged with distribution of drugs on a school campus and child endangerment.  Supposedly, she sold pot brownies to her fellow students for $3 each or 2 for $5.  3 of them experienced nausea and vomiting and 2 were taken to the hospital in an ‘unresponsive’ state, according to officials.

California drug laws are severe when it comes to educational institutions and the distribution of drugs to minor children.  CA Health and Safety Code 11361 covers sale of marijuana to a minor.  However, that law applies only when the seller is over the age of 18; the girl in question is still a minor herself, according to law.  If she were an adult, she would face up to 7 years in state prison, depending on the age of the minor that the drugs were sold to.

There are separate laws, moreover, for possession of marijuana on school grounds (especially while school is in session).  If you are caught with 28.5 grams of marijuana or less on school grounds while the educational institution in question is still open, then you could face misdemeanor charges, 10 days in county jail, and a $250 fine.  If the amount you are caught with is over 28.5 grams, then your sentence could go up to 6 months and your fine to $500.  This senior may have thought it was a fun idea to sell her baked goods on campus, but she faces expulsion in addition to criminal charges.


Hash Oil Lab Bust in San Francisco Miraloma Park (CA Health and Safety Code 11379.6)

San Francisco law enforcement agents have taken two men 33-year-old and 26-year-old (name withheld in order to protect the privacy of the accused) into custody on suspicion of manufacturing hash oil in an illegal lab in their Miraloma Park home.  Upon conducting a search of the residence, police found various tools used to make hash oil, mainly an electrical bypass, and evidence of a ‘honey oil’ creation set up.  They also found approximately 84 marijuana plants, 82 bottles of hash oil, and about 10 pounds of dried and processed marijuana.  Both have been arrested on several different charges:  2 counts of selling marijuana, manufacturing a controlled substance, stealing utilities, maintaining premises where illegal drugs were being used and/or sold, and marijuana cultivation. 

California law dictates that all parts of the cannabis plant are considered illegal.  This includes the seeds, resin, oil, salts, mixtures, and other compounds that are derived from the plant itself.  The laws concerning hash oil in California are, on the other hand, confusing.  Usually referred to as ‘honey oil,’ ‘wax,’ ‘shatter,’ or ‘dabs,’ butane hash oil (BHO) is really a concentrated form of marijuana (about 80% THC) and has enjoyed quite a bit of popularity lately.  Making BHO became illegal to manufacture in 2008 (see The People v. Bergen).  Now, it’s legal for pot clubs to sell it and legal for medical marijuana patients to possess it, but it’s still illegal to make it (CA Health and Safety Code 11379.6) manufacturing drugs and narcotics).  This law was originally intended to criminalize the creation of methamphetamines, but it has been interpreted to cover the creation of hash oil as well.  In other words, the same individual could buy hash oil at a pot club legally, but if they are manufacturing hash oil just down the street, they will face up to 7 years in state prison and a maximum fine of $50,000.