Health and Safety Code Section 11358 makes it illegal to plant, cultivate, harvest, dry, or process any part of marijuana. Law enforcement agencies will usually conduct surveillance, and obtain a search warrant, before raiding a specific location.
An individual may get arrested and charged with a violation of Health and Safety Code Section 11358 if they aided in the cultivation or processing of the marijuana, or if they had control over the property where they had knowledge marijuana was growing or being processed. The law enforcement agency may request an arrest warrant, if a person of interest is not present during the raid.
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It is important to note, that any individual employed in a location that is used to cultivate or process marijuana, may run the risk of being improperly charged with a violation of HS 11358. The problem is that the law enforcement officers may not have much information about involvement of the employees. Anyone arrested at a property that is the subject of a raid, may be charged with violating this code. This is a serious issue when the individual has no role in cultivating or processing the marijuana, but is nevertheless arrested as an abettor. For example, a security guard may have nothing to do with the cultivation, but may get charged with this offense.
The consequences of being convicted for a violation of HS11358 is prison for 16, 24, or 36 months. This is a straight Felony, which means it can never be reduced to a Misdemeanor.
On a good note, an experienced attorney from The Law Office of Ben Mironer can negotiate with a prosecutor to explain the whole story. Prosecutors have lots of room to negotiate these types of charges. If the cultivation was for personal use, the person may be eligible for a deferred entry of judgement (DEJ), under Penal Code Section 1000. If the amount of marijuana being cultivated is excessive for personal use, but other defenses may apply, a prosecutor may offer a plea bargain to a lesser offense. If the lesser offense allows for DEJ, then that is another option to earn a dismissal. DEJ essentially allows the individual an opportunity to continue the case for sentencing, for a 6-18 month period, and to then earn a dismissal of all charges once the court ordered requirements are completed.
Also, there are various code sections that are lesser offenses to a violation of HS11358, which do not carry prison time as a consequence. Some of these other code sections include HS 11365, HS 11366, or HS 11366.5. These offenses are wobblers, which means they can be Felonies or Misdemeanors. Also, they can be reduced to misdemeanors and expunged from someone’s record. While HS 11365 would allow for DEJ, the other code sections do not. It is important to have an attorney that is well versed in the various code sections associated with Marijuana cultivation. It could mean the difference between ending up with no criminal record, or ending up with a Felony on record.