Offense
Plants, cultivates, harvests, dries, etc. cannabis plants
Ranges from an infraction (age 18-20, six plants or less) to felony depending on priors and conduct.
Aggravated Felony (AF)
This is a bad plea–but see Advice for options and for the argument that the California definition of cannabis is broader than the federal definition of marijuana.
Even growing for personal use has been held an AF as an analogue to a federal manufacturing felony.1See United States v. Reveles-Espinoza, 522 F.3d 1044 (9th Cir. 2008).
See Advice and see § N.8 Controlled Substance.
Crime Involving Moral Turpitude (CIMT)
Not CIMT because no intent to sell or distribute
Other Removal Grounds
Assume deportable and inadmissible for CS conviction, although see Advice. Consider alternatives such as PC 32, 592, etc. at Advice.
Inadmissible for reason to believe trafficking. Warn D that if imm authorities find strong evidence of intent to sell, D could be charged with being inadmissible because they have “reason to believe” D participated in trafficking. This ground bars almost all relief and might extend to juvenile conduct. See 11379.
Advice and Comments
Review CS defenses at Advice for 11377 before pleading to this offense.
Avoid this plea because the offense – even for personal use — has been held to be analogous to a federal “aggravated felony.” There are arguments against this, below, but they are not guaranteed to win.
Argument. Arguably no California cannabis conviction from on or after November 9, 2016 is a controlled substance offense or drug trafficking aggravated felony for immigration purposes, because as of that date Prop 64 defined California “cannabis” more broadly than the federal definition of “marijuana.” See discussion at Advice at current 11357(a)(2). Under that argument, 11358 is not a controlled substance or aggravated felony conviction.
Infraction. Conservatively assume even a California infraction in adult (not juvenile) court is a “conviction” for imm purposes because some officers are treating it as such, arguably in error. If it is held a conviction, this could have the absurd result that an 11358(b) infraction is an “aggravated felony.”
AF: Plead to a non-drug crime, e.g., PC 32 or 136.1(b)(1) with less than 1 yr, 460(a), (b), 592 theft of water by fraud (wobbler), 594, disposing hazardous waste (25189.5), 370/372.5, or other offenses. (If necessary and if D’s immigration case can survive it, plead to possession per 11357(b), or to 11377 with an unspecified substance. See 11377.)
Or, take PC 1000 if D is a good candidate. Success will mean no conviction or admission of a controlled substance offense. See 11377.
If D is a refugee, asylee, or potential applicant for asylum, see Advice about trafficking at 11360, below.
Victims of human trafficking. Some people who work unlawfully growing mj ( or as mules, dealers, etc.) are victims of human trafficking. This could support a criminal defense to charges and/or a vehicle to obtain post-conviction relief for a prior conviction. See Overview: Survivor Defenses and see also ILRC, New Options for Survivors of Trafficking and Domestic Violence (Nov. 2022) at www.ilrc.org/crimes-summaries.
SB54: As straight misdemeanors (11358(a)-(c)), law enforcement cannot notify or transfer to ICE. HS 11358(d) permits cooperation with ICE for 15 years.
Mandatory Detention: People not admitted to U.S. are subject to MD if they are inadmissible for crimes, and people admitted to the U.S. are subject to MD if they are deportable for certain crimes. See advice on Mandatory Detention.