CALCRIM No. 2375. Simple Possession of Cannabis or Concentrated Cannabis: Misdemeanor (Health & Saf. Code, § 11357(b))

Judicial Council of California Criminal Jury Instructions (2023 edition)

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(iv) Simple Possession
2375.Simple Possession of Cannabis or Concentrated Cannabis:
Misdemeanor (Health & Saf. Code, § 11357(b))
The defendant is charged [in Count ] with possessing (more than
28.5 grams of cannabis/more than 8 grams of concentrated cannabis), a
controlled substance [in violation of Health and Safety Code section
11357(b)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant possessed a controlled substance;
2. The defendant knew of its presence;
3. The defendant knew of the substance’s nature or character as a
controlled substance;
4. The controlled substance was (cannabis/concentrated cannabis);
AND
5. The (cannabis/concentrated cannabis) possessed by the defendant
weighed more than (28.5 grams/8 grams).
<Sentencing Factor on defendant’s age>
If you find the defendant guilty of this crime [as charged in Count[s]
], you must then decide whether the People have proved the
additional allegation that when the defendant possessed
(cannabis/concentrated cannabis), (he/she) was 18 years of age or older.
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
[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. Industrial hemp may include the seeds of the plant; the resin
extracted from any part of the plant; and every compound, manufacture,
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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 the cannabis plant.]
[The People do not need to prove that the defendant knew which specific
controlled substance (he/she) possessed.]
[Two or more people may possess something at the same time.]
[A person does not have to actually hold or touch something to possess
it. It is enough if the person has (control over it/ [or] the right to control
it), either personally or through another person.]
[Agreeing to buy a controlled substance does not, by itself, mean that a
person has control over that substance.]
New January 2006; Revised June 2007, April 2010, October 2010, April 2011,
February 2015, September 2018
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
Defenses - Instructional Duty
If a medical cannabis defense applies under the Compassionate Use Act or the
Medical Marijuana Program Act (See Health & Saf. Code, §§ 11362.5, 11362.775.),
the burden is on the defendant to produce sufficient evidence to raise a reasonable
doubt that the conduct was lawful. (People v. Mower (2002) 28 Cal.4th 457, 470
[122 Cal.Rptr.2d 326, 49 P.3d 1067]; People v. Jackson (2012) 210 Cal.App.4th
525, 538-539 [148 Cal.Rptr.3d 375].) If the defendant introduces substantial
evidence, sufficient to raise a reasonable doubt that the conduct may have been
lawful, the court has a sua sponte duty to give the relevant defense instruction:
CALCRIM No. 3412, Compassionate Use Defense, or CALCRIM No. 3413,
Collective or Cooperative Cultivation Defense.
Give CALCRIM No. 3415, Legal Use Defense, on request if supported by
substantial evidence.
AUTHORITY
• Elements. Health & Saf. Code, § 11357(b); People v. Palaschak (1995) 9 Cal.4th
1236, 1242 [40 Cal.Rptr.2d 722, 893 P.2d 717].
CONTROLLED SUBSTANCES CALCRIM No. 2375
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• Definition of Cannabis. Health & Saf. Code, § 11018.
• Definition of Industrial Hemp. Health & Saf. Code, § 11018.5.
• Definition of Concentrated Cannabis. Health & Saf. Code, § 11006.5.
• Knowledge. People v. Romero (1997) 55 Cal.App.4th 147, 151-153, 157, fn. 3
[64 Cal.Rptr.2d 16]; People v. Winston (1956) 46 Cal.2d 151, 158 [293 P.2d 40].
• Constructive vs. Actual Possession. People v. Barnes (1997) 57 Cal.App.4th 552,
556 [67 Cal.Rptr.2d 162].
• Medical Cannabis. Health & Saf. Code, § 11362.5.
• Burden of Proof for Defense of Medical Use. People v. Mower (2002) 28
Cal.4th 457, 460 [122 Cal.Rptr.2d 326, 49 P.3d 1067]; People v. Frazier (2005)
128 Cal.App.4th 807, 820-821 [27 Cal.Rptr.3d 336].
• Amount Must Be Reasonably Related to Patient’s Medical Needs. People v.
Trippet (1997) 56 Cal.App.4th 1532, 1550-1551 [66 Cal.Rptr.2d 559].
• Primary Caregiver. People v. Mentch (2008) 45 Cal.4th 274, 282-292 [85
Cal.Rptr.3d 480, 195 P.3d 1061].
• Defendant’s Burden of Proof on Compassionate Use Defense. People v. Mentch
(2008) 45 Cal.4th 274, 292-294 [85 Cal.Rptr.3d 480, 195 P.3d 1061] (conc.opn.
of Chin, J.).
• Medical Marijuana Program Act Defense. People v. Jackson (2012) 210
Cal.App.4th 525, 538-539 [148 Cal.Rptr.3d 375].
• Prior Version of This Instruction Upheld. People v. Busch (2010) 187
Cal.App.4th 150, 160 [113 Cal.Rptr.3d 683].
SECONDARY SOURCES
7 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 76-77.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.01[1][a], [b], [d], [3][a], [a.1] (Matthew
Bender).
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