Recreational use of marijuana became legal in California on January 1, 2018. The legalization of cannabis regulation and adult-use cannabis is the result of voter passage of Proposition 64 in November 2016.
Adults age 21 and older may now possess up to
They may also grow up to six (6) plants for their personal use, subject to certain restrictions.
Adults who exceed these amounts of recreational cannabis can be charged with a misdemeanor and punished by
People under age 21 who possess marijuana can be charged with an infraction and sentenced to a fine (if at least 18) or to drug counseling and community service (if under 18).
Restrictions on sale and transport
It is still a crime to sell marijuana in California — or to possess it with the intent to sell it — unless you have both a state and local license.
For most people, violation of California’s cannabis laws is a misdemeanor. However, people with a serious criminal history — including multiple prior drug convictions — can be charged with a felony for violating California drug laws.
Marijuana is still illegal under federal law
Although marijuana remains a Schedule 1 drug under the United States Controlled Substances Act, we do not anticipate federal prosecutors in California going after people who use or possess marijuana in accordance with California and local government regulations. We do, however, caution people to understand and comply with those laws, including restrictions on the use of marijuana at work.
To help you understand the nuances of laws on marijuana, our California criminal defense lawyers will answer the following top 10 questions:
Recreational use of marijuana became legal in California on January 1, 2018.
Health and Safety Code 11357 HS is the California marijuana law that sets forth the rules for personal possession of marijuana for recreational purposes.
Possession of not more than 28.5 grams of marijuana (a bit more than an ounce) for personal use is legal in California as of January 1, 2018, for people age 21 and older. So is the possession of up to eight (8) grams of concentrated cannabis (hashish). 1
Note that there are restrictions on where there can be the use of cannabis, however.
Marijuana and cannabis products must be smoked, vaped, or consumed in private, with the consent of the property owner. This means that your landlord or employer can prohibit your use of marijuana at work or on a property you rent.
Additionally, marijuana may not be smoked or consumed in:
It is also illegal to possess open containers of marijuana in public, even if you are not consuming the marijuana.
When is possession of marijuana still a crime?
Punishment for illegal possession of marijuana is as set out in the chart below.
| HS 11357 marijuana possession offense | Type of offense | Penalty |
| Possession of marijuana or concentrated cannabis by people under 21 | Infraction | Drug counseling and community service (defendants under 18); fine of up to $100 (defendants 18 and over) |
| Possession of more than 28.5 grams of marijuana or more than 8 grams of concentrated cannabis (defendants 18 and over) | Misdemeanor | Up to 6 months in county jail; up to $500 fine |
| Possession of more than 28.5 grams of marijuana or more than 4 grams of concentrated cannabis (defendants under 18) | Infraction | Drug counseling and community service |
| Possession of marijuana or concentrated cannabis on the grounds of a K-12 school (defendants 18 and over) | Misdemeanor | Up to $250 fine for a first offense |
| Possession of marijuana or concentrated cannabis on the grounds of a K-12 school (defendants under 18) | Infraction | Drug counseling and community service |
| HS 11357 marijuana possession offense | Type of offense; penalty |
| Possession of marijuana or concentrated cannabis by people under 21 | Infraction; drug counseling and community service (defendants under 18); fine of up to $100 (defendants 18 and over) |
| Possession of more than 28.5 grams of marijuana or more than 8 grams of concentrated cannabis (defendants 18 and over) | Misdemeanor; up to 6 months in county jail; up to $500 fine |
| Possession of more than 28.5 grams of marijuana or more than 8 grams of concentrated cannabis (defendants under 18) | Infraction; drug counseling and community service |
| Possession of marijuana or concentrated cannabis on the grounds of a K-12 school (defendants 18 and over) | Misdemeanor; up to $250 fine for first offense. See 11357(c) HS |
| Possession of marijuana or concentrated cannabis on the grounds of a K-12 school (defendants under 18) | Infraction; drug counseling and community service |
Proposition 64 amended Health and Safety Code 11358 HS to allow most people who are 21 and over to cultivate up to six marijuana plants.
California Health and Safety Code 11358 HS (marijuana cultivation), as amended by Proposition 64, allows most people who are 21 and over to cultivate up to six (6) marijuana plants. Growers must grow the marijuana indoors, unless outdoor growth is permitted under local regulations (such as those in effect in unincorporated areas of Los Angeles County).
Regardless of whether it is grown indoors or outdoors, the marijuana plants must be
People under 21 who grow any amount of marijuana are guilty of an infraction. If under 18 years of age, they can be required to attend drug counseling and perform community service. People 18 and over (but under 21) who unlawfully grow marijuana may be fined up to $100.
And for adults, cultivating over six marijuana plants remains a crime. Most defendants who plant, cultivate, harvest, dry or process more than 6 living marijuana plants will be charged with a misdemeanor and face
Cultivating more than 6 marijuana plants can be charged as a California felony, however, for the following defendants:
Proposition 64 legalized the sale of marijuana. But this is only for businesses that obtain and operate in accordance with both a state and local license.
As a result, possession of marijuana with the intent to sell it without a license remains a crime under Health and Safety Code 11359 HS (California’s possession of marijuana for sale law).
For most adult defendants, HS 11359 possession for sale without a license is a misdemeanor, carrying the following penalties:
But marijuana possession for sale without a license is a felony if any of the following is true:
For these defendants, possessing marijuana for sale is punishable by 16 months, or two or three years in county jail. 6
Proof of intent to sell marijuana without a license is usually made by circumstantial evidence (“indicia of sale”). 7
Such evidence can include:
Under California’s marijuana legalization law, you can only sell commercial cannabis as part of the legal cannabis industry if you have obtained a license to do so. These licenses are issued to cannabis businesses by the Bureau of Cannabis Control.
If you don’t have a license, then selling pot (or transporting it in order to sell it) is still a crime under California Health and Safety Code 11360 HS. Under Prop 64, HS 11360 has become a law intended to prohibit a “black market” in marijuana.
For most defendants, unlicensed sale or transport for the sale of marijuana is a misdemeanor punishable by
For defendants under 18, it is an infraction. Also, giving away or transporting for sale up to 28.5 grams of marijuana without a license is an infraction.
But sale/transport for sale of marijuana without a license to do so is a felony for the following defendants:
In any of these scenarios, black market sale or transportation for sale of marijuana under HS 11360 is punishable by two (2), three (3) or four (4) years in jail. 9
Finally, transporting marijuana without intent to sell it, or giving marijuana away, is not a crime in California so long as both of the following are true:
Health and Safety Code 11361 HS makes it a felony for anyone 18 years or older to sell marijuana to a minor.
California Health and Safety Code 11361 HS makes it a felony for anyone 18 years or older to sell marijuana to a minor. This law is unchanged by Proposition 64/marijuana legalization.
Section 11361 also makes it a felony to use a minor unlawfully to:
any amount or type of marijuana. 11
Sentences for violating California Health and Safety Code 11361 are served in California state prison, rather than county jail.
If the minor involved is under 14 years of age, the penalty is:
If the minor is over 14, but less than 18, the penalty is:
“Concentrated cannabis” is the separated resin (whether crude or purified) obtained from the marijuana plant. It is commonly referred to as
Concentrated cannabis is considered to be marijuana under California law. This means, among other things, that people entitled to
Also, under Proposition 64, simple possession of concentrated cannabis for recreational use is legal–but a person may only possess up to 8 grams for personal use.
California Vehicle Code 23222(b) VC prohibits driving in possession of up to 28.5 grams of marijuana. It is a sister provision to the law against driving with an open container of alcohol in your vehicle. Proposition 64 did not change this law.
Driving with marijuana is an infraction. It can be punished by:
(Driving under the influence of marijuana is prosecuted the same as DUI of alcohol. Suspects are given blood tests to measure the amount of THC in their blood.) Also see our article on Can I smoke weed in my car in California?
Medical cannabis was made legal by voter approval of Proposition 215. It is known as California’s Compassionate Use Act of 1996 (the “CUA”). The CUA is set forth in California Health and Safety code 11362.5 HS and subsequent sections.
Proposition 64, legalizing recreational marijuana, was passed two decades after Prop 215. But even though recreational marijuana is legal, California’s medical marijuana laws and system are still relevant for public health.
For one thing, the strict quantity limits applicable to recreational marijuana do not apply. Medical marijuana users can, with a doctor’s recommendation, possess as much marijuana as their condition reasonably demands for medical purposes.
Additionally, people under 21 may use and cultivate medical marijuana with a doctor’s recommendation (and, if they are under 18, the consent of a parent).
Who may legally use medical marijuana?
Under the CUA, a qualified patient is legally entitled to a medical marijuana identification card if a doctor has recommended it or approved it for the treatment of a serious medical condition such as:
The definition of a “primary caregiver”
You are a “primary caregiver” if you are:
What may medical marijuana patients and primary caregivers legally do?
California’s medical marijuana laws authorize possession, cultivation, transport and administration of medical marijuana, as long as the marijuana is:
Under no condition, however, may they
Proposition 64 requires all medical marijuana users to obtain a new recommendation from their physician by January 1, 2018.
Medical marijuana dispensaries
California law also allows the distribution of medical marijuana through non-profit
There are strict state and local requirements for the operation of dispensaries. But legally operating dispensaries may give marijuana to medical marijuana patients and their primary caregivers with an ID card, or sell it to them “at cost.”
In the wake of Proposition 64, it is unclear whether medical marijuana dispensaries will continue to operate long-term or will be folded into the new market for legal recreational marijuana.
The Federal Controlled Substances Act
Title 21 of the United States Code is the federal “Controlled Substances Act” (“CSA”). Under the CSA, marijuana is considered a Schedule 1 hallucinogenic drug. This means the government believes it has a high potential for abuse and no currently accepted medical use. 20
The CSA takes precedence over the laws of California. 21 Technically, therefore, when you sell, transport, or give away marijuana, you violate federal law — even if you are abiding by California’s medical marijuana law or recreational marijuana legalization law. 22
Penalties under federal law
Marijuana-based offenses are punished severely under federal law. 23 Just a couple of examples will illustrate this point.
A first offense for simple possession of marijuana is punishable by:
Cultivation, possession with intent to sell, and/or sale of fewer than 50 pounds of marijuana or 50 plants is punishable by:
Fines and periods of incarceration increase for greater quantities of marijuana or conviction of subsequent offenses.
In addition, if you are convicted of any federal drug offense, you may also be ordered to reimburse the government its “reasonable costs” of investigating and prosecuting the offense. 26
When federal prosecution for marijuana is likely to occur
As a practical matter, you are unlikely to be prosecuted under federal law if you use or cultivate pot for personal use, particularly in compliance with Prop 64.
On April 26, 2022, Attorney General Merrick Garland told a Senate Appropriations subcommittee that prosecuting people for possessing marijuana is an inefficient use of federal resources. The federal government is primarily interested in prosecuting large-scale traffickers and those with links to organized crime.
On October 6, 2022, President Joe Biden pardoned all federal marijuana possession convictions, further indicating that the feds will not prosecute simple possession cases. 27
Federal law applies on federal property within California
Users of marijuana — both recreational and medical — should be aware that federal law, rather than California law, applies on federal property within the state of California. Examples of federal property include:
If a violation of marijuana law occurs on federal property, it can be punished under federal law. And federal penalties are generally greater for drug crimes that occur on federal property than those that occur elsewhere but are, nevertheless, prosecuted under federal law. 28
HUD Housing
The U.S. Department of Housing and Urban Development (“HUD”) allows local housing authorities to set their own policies on marijuana use. 29
The federally assisted housing can legally be denied to medical or recreational marijuana users. And although rarely enforced, the use of marijuana in HUD housing can subject patients to the termination of other federal benefits, including food stamps. 30
The sale of marijuana – and even possession with intent to sell — is an “aggravated felony” for purposes of the Immigration and Nationality Act. This is true regardless of whether you were convicted under California or federal law. 31
The immigration consequences of a criminal conviction involving an aggravated felony include deportation.
If you are an undocumented alien, therefore, it is highly recommended that you consult with an experienced criminal defense attorney if law enforcement accuses you of a crime involving marijuana.
For Additional Help:
If you or a loved one has been charged with a criminal offense, we invite you to contact our California criminal defense attorneys for guidance and representation.
Our Las Vegas Nevada criminal defense attorneys represent clients accused of violating Nevada marijuana laws. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.
Department of Cannabis Control (DCC) Resources for Sellers:
