California Health & Safety Code § 11358: Cannabis Cultivation Laws and Defenses

By The Bulldog Law Criminal Defense Team • Reviewed by a licensed California criminal defense attorney

California allows adults to grow cannabis at home, but the law has important limits.

Under California law, adults 21 and older can generally grow up to six cannabis plants at home. The plants must be grown in a way that follows state and local rules. Cities and counties can also impose additional rules, including rules about where home cultivation may take place.

Growing more than six plants can lead to a misdemeanor under Health & Safety Code § 11358. In some situations, however, the charge can become a felony.

Those felony situations can involve certain prior convictions or environmental violations connected to the cultivation. These may include illegal water diversion, pollution, hazardous waste, damage to waterways, or other serious environmental harm.

Commercial cannabis cultivation is also different from growing a small personal garden. A person who wants to cultivate cannabis for commercial purposes generally needs the proper state and local licenses.

This guide from The Bulldog Law's drug crimes defense practice explains California's cannabis cultivation laws, when cultivation can become a crime, possible defenses, and what to do if law enforcement investigates a grow.

How Many Cannabis Plants Can You Grow in California?

For adults 21 and older, California allows home cultivation of up to six cannabis plants.

However, "six plants" does not mean that every six-plant grow is automatically legal.

The grow must also follow other state and local rules.

For example:

• The person must meet the age requirements.

• The plants must be grown at a private residence.

• Local rules may place additional limits on home cultivation.

• Some cities and counties require permits.

• Local governments may restrict or prohibit outdoor home cultivation.

• Property owners may have rules that restrict cultivation on rental property.

• Cannabis remains illegal under federal law.

California's Department of Cannabis Control confirms that adults 21 and older can grow up to six plants at home, while cities and counties can have additional rules about home cultivation.

Before growing cannabis, it is important to check both California law and the rules of the city or county where the property is located.

What Happens If You Grow More Than Six Plants?

Health & Safety Code § 11358(c) generally makes cultivating more than six living cannabis plants by a person 18 or older a misdemeanor.

The maximum penalty under that subsection is:

• Up to six months in county jail

• A fine of up to $500

• Or both jail and the fine

The case can become more serious when one of the conditions listed in § 11358(d) applies.

This means that having seven or more plants does not automatically make every case a felony.

The facts surrounding the cultivation matter.

When Can Cannabis Cultivation Become a Felony?

Section 11358(d) lists specific situations that can increase the offense to felony-level punishment.

These include certain prior convictions.

A person may face felony exposure if they have:

• Certain serious or violent prior convictions

• A conviction requiring sex-offender registration

• Two or more prior convictions under § 11358

Felony exposure can also arise when the cultivation results in certain environmental violations.

This distinction is very important.

A defense lawyer should look closely at why the prosecution is claiming the cultivation is a felony.

If the prosecution relies on a prior conviction, the lawyer should review whether the prior actually qualifies.

If the prosecution relies on environmental harm, the lawyer should examine the environmental evidence.

Environmental Violations Can Change the Case

Environmental issues can be a major part of some large or illegal cannabis cultivation cases.

Section 11358 identifies several environmental violations that can support felony treatment.

These can involve:

• Illegal diversion of water

• Illegal discharge of water

• Pollution of state waters

• Damage to rivers, streams, or lakes

• Hazardous substances

• Hazardous waste

• Harm to endangered species

• Harm to wildlife

• Substantial environmental damage

The law also addresses situations where a person intentionally or with gross negligence causes substantial environmental harm to public lands, water, or other public resources.

These cases can involve several government agencies.

For example, investigations may involve water officials, wildlife officers, environmental agencies, and local law enforcement.

The environmental evidence can therefore become just as important as the number of plants.

Water Use Can Become a Major Issue

Large cannabis grows may require significant amounts of water.

If law enforcement claims that water was taken illegally, the water issue may become part of the criminal case.

The defense may need to examine:

• Where the water came from

• Who owned the water source

• Whether the person had permission to use it

• Whether a permit was required

• How much water was used

• Whether the alleged diversion actually occurred

• Whether the evidence was properly collected

The California Water Boards have reported criminal cases involving cannabis cultivation and alleged violations involving unauthorized water diversion and discharge.

Environmental allegations should not simply be accepted because an agency report says damage occurred.

The evidence should be tested.

Hazardous Chemicals and Waste

Environmental allegations can also involve chemicals and waste.

A cultivation investigation may involve claims about:

• Pesticides

• Fuel

• Chemicals

• Waste

• Contaminated soil

• Illegal dumping

• Discharge into waterways

The defense should examine what substance was found, where it was found, who controlled it, and whether testing actually supports the government's claim.

A property owner should not automatically be treated as responsible for every substance found on a large property.

The prosecution still needs evidence connecting the accused person to the alleged conduct.

Unlicensed Commercial Cannabis Cultivation

Personal cultivation and commercial cultivation are different.

If someone wants to grow cannabis for sale as a licensed business, California requires the appropriate cannabis cultivation license. The type of cultivation license depends on factors such as the size of the canopy and the type of lighting used.

Commercial cultivation can also be affected by local rules.

California has a patchwork of local cannabis laws. Some cities and counties allow certain cannabis businesses, while others prohibit some or all commercial cannabis activities.

This means a person should not assume that a state license alone answers every local-law question.

Can a Landlord Be Charged for a Tenant's Cannabis Grow?

Owning the property does not automatically mean that the owner committed cannabis cultivation.

The important questions may include:

• Did the owner know about the grow?

• Did the owner participate?

• Did the owner control the cultivation area?

• Did the owner receive money from the operation?

• What does the lease say?

• What communications exist between the owner and tenant?

• Who purchased the equipment?

• Who cared for the plants?

A landlord who genuinely did not know about the cultivation may have important defenses.

On the other hand, evidence showing that a property owner knowingly helped operate a grow can create a very different situation.

Can a Roommate Be Charged for Someone Else's Grow?

The same basic issue applies to roommates.

Living in the same house does not automatically mean that every plant belongs to every person in the home.

The prosecution may need to show that the accused person knew about the cannabis and had a role in cultivating it.

The location of the plants can matter.

For example, plants found in a locked room controlled by one person may raise different questions from plants found throughout a shared property.

Messages, fingerprints, purchases, surveillance footage, financial records, and other evidence may also become important.

Common Defenses to HS 11358 Charges

1. The Cultivation Was Legal

The strongest defense may be that the cultivation was protected by California law.

The defense can examine:

• The person's age

• The number of plants

• Where the plants were grown

• Whether the property was a private residence

• Local cultivation rules

• Whether the plants were being grown for personal use

• Whether any permit was required

If the cultivation falls within the legal protections, the prosecution must have another valid legal basis for the charge.

2. The Person Did Not Know About the Plants

Knowledge can become important when the prosecution claims that someone participated in cultivation.

A landlord, roommate, property manager, or family member may be accused even though another person was actually growing the cannabis.

The defense can use records and communications to show who controlled the grow.

3. The Person Did Not Participate in Cultivation

Simply owning or living on a property does not answer every question.

The defense may examine who:

• Bought the plants

• Planted them

• Watered them

• Maintained them

• Bought growing equipment

• Controlled the grow area

• Sold or planned to sell the cannabis

The evidence should be examined as a whole.

4. Challenge the Environmental Allegations

When the prosecution uses an environmental violation to seek felony treatment, the environmental evidence becomes critical.

The defense may question:

• Water testing

• Soil testing

• Chemical testing

• Photographs

• Environmental reports

• The source of the alleged contamination

• Who caused the alleged damage

• When the damage occurred

• Whether the damage was actually substantial

• Whether the required mental state was proven

An environmental allegation should be supported by reliable evidence.

5. Challenge the Search

Large cannabis grows may be investigated through:

• Search warrants

• Surveillance

• Property inspections

• Tips

• Aerial observations

• Vehicle stops

• Interviews

• Other investigative methods

The defense should examine whether law enforcement followed the Fourth Amendment.

If officers conducted an unlawful search, the defense may be able to challenge evidence obtained during that search.

Our information about common weaknesses in California criminal cases provides additional information about evidence and suppression issues.

Federal Law Is Still Important

California's legalization of cannabis does not change federal law.

Cannabis remains illegal under federal law. California's Department of Cannabis Control also warns that cannabis cannot be used or possessed on federal lands and cannot be taken across state lines.

This creates an important difference between California law and federal law.

For example, a person may have a lawful California home grow but still face a federal issue if the conduct occurs on federal property or involves other federal jurisdiction.

The federal issue is especially important for people dealing with immigration matters.

Cannabis and Immigration Problems

Cannabis can create serious immigration concerns for noncitizens because immigration law is federal.

A person should not assume that conduct allowed under California law is automatically safe for immigration purposes.

Issues can arise from:

• Cannabis convictions

• Admissions about cannabis use

• Cannabis cultivation

• Employment in the cannabis industry

• Possession or transportation

• Federal immigration interviews

• Border or immigration proceedings

Noncitizens should speak with an attorney who understands both criminal defense and immigration law before discussing cannabis conduct with immigration authorities.

Our guide to criminal convictions and deportation consequences provides additional information about the connection between criminal cases and immigration.

What If I Have an Old Cannabis Conviction?

Older cannabis convictions may not always need to remain on a person's record forever.

California created post-conviction relief options for certain cannabis offenses following Proposition 64.

Depending on the offense and the person's history, a person may be able to seek relief such as:

• Dismissal

• Resentencing

• Reduction

• Other record-clearing relief

Eligibility depends on the specific conviction and current law.

Our guide explaining what expungement means and how record clearing works provides more information about California record-clearance options.

Frequently Asked Questions

How many cannabis plants can I legally grow in California?

Adults 21 and older can generally grow up to six cannabis plants at home under California law.

However, local rules can add requirements. Some cities and counties may require permits or restrict outdoor cultivation. Property owners may also have rules for renters.

Before growing cannabis, check both state and local rules.

Is growing more than six plants a felony?

Not automatically.

For a person 18 or older, cultivating more than six living cannabis plants is generally a misdemeanor under § 11358(c), with up to six months in county jail and/or a fine of up to $500.

However, § 11358(d) allows felony-level punishment when certain prior convictions or environmental violations are present.

When can cannabis cultivation become a felony?

Felony exposure can arise when the person has certain qualifying prior convictions, has two or more prior § 11358 convictions, or when the cultivation results in certain environmental violations.

Environmental issues can include illegal water diversion, unlawful discharge, damage to waterways, hazardous waste, harm to protected wildlife, or substantial environmental harm.

Can my landlord be charged because my tenant was growing cannabis?

Not simply because the landlord owns the property.

The facts matter.

The prosecution may need evidence showing that the landlord knew about the cultivation or participated in it.

The lease, messages, payment records, inspection history, and other evidence may help show what the landlord knew.

Can I be charged if the plants belonged to my roommate?

It depends on the evidence.

The prosecution must connect the accused person to the alleged cultivation.

A defense may focus on who controlled the plants, who maintained them, who bought the equipment, and who knew about the grow.

Can police search my property because they believe I am growing cannabis?

Police must still follow constitutional search-and-seizure rules.

The fact that cannabis is legal in some situations does not remove Fourth Amendment protections.

A defense lawyer can review whether police had a valid warrant, consent, probable cause, or another legal basis for the search.

Can environmental violations make a cannabis cultivation case worse?

Yes.

Certain environmental violations listed in § 11358(d) can support felony-level punishment when the statutory requirements are met.

These can include violations involving water, hazardous substances, wildlife, waterways, and substantial environmental harm.

Does California legalization protect me from federal cannabis laws?

No.

California law and federal law are separate.

Cannabis remains illegal under federal law, including on federal property.

This is especially important for noncitizens and anyone involved in conduct that could fall under federal jurisdiction.

Can a cannabis conviction affect immigration?

It can.

Cannabis is still illegal under federal law, and immigration law is also federal.

A noncitizen should not assume that a California cannabis offense has no immigration consequences.

Get immigration advice before accepting a plea or making an admission about cannabis activity.

What Should I Do If Police Investigate My Cannabis Grow?

If law enforcement contacts you about a cannabis cultivation investigation, do not assume that the case is simple because cannabis is legal in California.

The investigation may involve plant counts, property ownership, environmental issues, local rules, search warrants, or alleged commercial activity.

You should:

• Avoid making detailed statements before speaking with a lawyer.

• Do not destroy or move evidence.

• Preserve leases and property records.

• Keep messages and emails.

• Preserve receipts and financial records.

• Keep permits and cultivation documents.

• Do not alter the property to hide evidence.

• Ask a lawyer to review the search and investigation.

If environmental allegations are involved, preserve records about water, chemicals, waste, land use, and property maintenance.

Defending a California Cannabis Cultivation Case

California cannabis law allows personal cultivation, but the rules have important limits.

• The number of plants matters.
• The person's age matters.
• Local rules matter.
• Property ownership matters.
• Environmental conditions matter.
• Prior convictions matter.

The way police obtained the evidence matters.

And for noncitizens, the immigration consequences may be just as important as the criminal charge.

An accusation of illegal cultivation should therefore be reviewed based on the specific facts, not simply the number of plants found on the property.

The Bulldog Law's drug crimes defense team represents people facing cannabis cultivation and other drug charges throughout California.

Contact the firm online or call (888) 928-1609 to discuss your case.