It is illegal to grow, or cultivate, marijuana. The California criminal jury instructions gives guidance to the factors that the prosecution must prove in order to successfully convict someone of this offense.
“Every person who plants/cultivates/harvests/dries/ or processes any marijuana or any part thereof is guilty of a violation of Heath and Safety Code Section 11358, a crime.
The word “harvesting” is defined as the gathering of crops of any kind.
The verb “to harvest” means:
a) to gather in a crop: reap…’
b) to gather a natural product as if by harvesting
In order to prove this crime, each of the following elements must be proved:
1. A person [planted] a marijuana plant; and
2. That person knew it was a marijuana plant or some part thereof.” CALJIC 12.24
The operative law that results in the above jury instruction is California Health and Safety Code Section 11358 which reads:
“Every person who plants, cultivates, harvests, dries, or processes any marijuana or any part thereof, except as otherwise provided by law, shall be punished by imprisonment in the state prison.”
Under federal law, sale, cultivation and possession of marijuana remain strictly illegal. However, the California Compassionate Use Act of 1996, known as Prop. 215 exempts patients and their primary caregivers from criminal prosecution for personal possession and cultivation of marijuana, but NOT for distribution or sale to others.
Medical cannabis may be legally used & cultivated by qualified patients in California under Prop. 215, provided they have a recommendation from a licensed physician.
State law SB 420 establishes Prop. 215 guidelines for possession and cultivation. State limits are set at 6 mature or 12 immature plants and 8 ounces marijuana, except where a physician declares more is needed, or where local governments authorize more.