CALCRIM No. 2364. Felony Cannabis Penalty Allegations (Health & Saf. Code, § 11360(a)(3))
Judicial Council of California Criminal Jury Instructions (2023 edition)
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2364.Felony Cannabis Penalty Allegations (Health & Saf. Code,
§ 11360(a)(3))
If you find the defendant guilty of <insert offense[s]> [as
charged in Count[s] ], you must then decide whether the People
have proved the additional allegation[s]. [You must decide whether the
People have proved (this/these) allegation[s] for each crime and return a
separate finding for each crime.]
To prove (this/these) allegation[s] [for each crime], the People must prove
that:
<Give the following paragraph if the defendant is charged under Health &
Safety Code section 11360(a)(3)(A)>
[___. The defendant has at least one prior conviction for
<insert description of offense requiring registration pursuant to Penal
Code section 290(c) or for an offense specified in Penal Code section
667(e)(2)(C)(iv)>(./;)]
<Give the following paragraph if the defendant is charged under Health
& Safety Code section 11360(a)(3)(B)>
[___. The defendant has at least two prior convictions for
<insert description of offense specified in Health & Safety Code
sections 11360(a) and 11360(a)(2)>(./;)]
<Give the following paragraph if the defendant is charged under Health
& Safety Code section 11360(a)(3)(C)>
[___. When committing that crime, the defendant knew that (he/she)
was selling, furnishing, administering, giving away, attempting to
sell, or offering to sell, furnish, administer, or give away cannabis
to a person under the age of 18 years(./;)]
<Give the following paragraphs if the defendant is charged under Health
& Safety Code section 11360(a)(3)(D)>
[___. The defendant (imported/[or] offered to import/[or] attempted to
import) (more than 28.5 grams of cannabis/more than 4 grams of
concentrated cannabis) into California(./;)]
[OR]
[___. The defendant (transported for sale/ [or] offered to transport for
sale/ [or] attempted to transport for sale) (more than 28.5 grams
of cannabis/more than 4 grams of concentrated cannabis) out of
California.]
[Selling for the purpose of this instruction means exchanging the
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cannabis for money, services, or anything of value.]
[A person administers a substance if he or she applies it directly to the
body of another person by injection, or by any other means, or causes
the other person to inhale, ingest, or otherwise consume the substance.]
[Cannabis means all or part of the Cannabis sativa L. plant, whether
growing or not, including the seeds and resin extracted from any part of
the plant. [It also includes every compound, manufacture, salt,
derivative, mixture, or preparation of the plant, its seeds, or resin.]]
<If applicable, give the definition of industrial hemp: Health & Saf. Code,
§ 11018.5>
[Cannabis does not include industrial hemp. Industrial hemp means a
fiber or oilseed crop, or both, that only contain types of the plant
Cannabis sativa L. with no more than three-tenths of 1 percent
tetrahydrocannabinol from the dried flowering tops, whether growing or
not. It may include the seeds of the plant; the resin extracted from any
part of the plant; and every compound, manufacture, salt, derivative,
mixture, or preparation of the plant, its seeds or resin produced from the
seeds.]
[Cannabis does not include the weight of any other ingredient combined
with cannabis to prepare topical or oral administrations, food, drink, or
other product.]
[Concentrated cannabis means the separated resin, whether crude or
purified, from cannabis.]
[The People do not need to prove that the defendant knew which specific
controlled substance (he/she) (sold/furnished/administered/imported).]
[A person does not have to actually hold or touch something to (sell/
furnish/administer/import) it. It is enough if the person has (control over
it/ [or] the right to control it), either personally or through another
person.]
The People have the burden of proving an allegation beyond a
reasonable doubt. If the People have not met that burden as to an
allegation, you must find that allegation has not been proved.
New September 2018
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of an
enhancement. (See, e.g., People v. Wallace (2003) 109 Cal.App.4th 1699, 1702 [1
Cal.Rptr.3d 324] [statute defines enhancement, not separate offense].)
CONTROLLED SUBSTANCES CALCRIM No. 2364
289
Give all relevant bracketed definitions.
Related Instructions
CALCRIM No. 2361, Transporting or Giving Away Cannabis: More Than 28.5
Grams.
CALCRIM No. 2363, Offering or Attempting to Transport for Sale or Offering to
Give Away Cannabis: More Than 28.5 Grams.
AUTHORITY
• Enhancements. Health & Saf. Code, § 11360(a)(3).
• Enhancement, Not Substantive Offense. People v. Wallace (2003) 109
Cal.App.4th 1699, 1702 [1 Cal.Rptr.3d 324].
• Definition of Cannabis. Health & Saf. Code, § 11018.
• Definition of Industrial Hemp. Health & Saf. Code, § 11018.5.
2365-2369. Reserved for Future Use
CALCRIM No. 2364 CONTROLLED SUBSTANCES
290
© Judicial Council of California.
