California Criminal Jury Instructions (CALCRIM) (2017)

2352. Possession for Sale of Marijuana

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2352.Possession for Sale of Marijuana (Health & Saf. Code,
§§ 11018, 11359)
The defendant is charged [in Count ] with [unlawfully]
possessing for sale marijuana, a controlled substance [in violation of
Health and Safety Code section 11359].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant [unlawfully] 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. When the defendant possessed the controlled substance, (he/she)
intended (to sell it/ [or] that someone else sell it);
5. The controlled substance was marijuana;
AND
6. The controlled substance was in a usable amount.
Selling for the purpose of this instruction means exchanging the
marijuana for money, services, or anything of value.
Ausable amount is a quantity that is enough to be used by someone as
a controlled substance. Useless traces [or debris] are not usable
amounts. On the other hand, a usable amount does not have to be
enough, in either amount or strength, to affect the user.
[Marijuana 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.] [It
does not include the mature stalks of the plant; fiber produced from the
stalks; oil or cake made from the seeds of the plant; any other
compound, manufacture, salt, derivative, mixture, or preparation of the
mature stalks (except the resin extracted therefrom), fiber, oil, or cake;
or the sterilized seed of the plant, which is incapable of germination.]]
[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
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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 December 2008, October 2010, February 2015,
February 2016
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the crime.
When instructing on the definition of “marijuana,” the court may choose to give
just the first bracketed sentence or may give the first bracketed sentence with either
or both of the bracketed sentences following. The second and third sentences
should be given if requested and relevant based on the evidence. (See Health &
Saf. Code, § 11018 [defining marijuana].)
If a medical marijuana 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.
If the medical marijuana instructions are given, then also give the bracketed word
“unlawfully” in the first paragraph and element 1.
AUTHORITY
• Elements. Health & Saf. Code, § 11359.
“Marijuana” defined. Health & Saf. Code, § 11018.
• 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].
• Selling. People v. Lazenby (1992) 6 Cal.App.4th 1842, 1845 [8 Cal.Rptr.2d
541].
• Usable Amount. People v. Rubacalba (1993) 6 Cal.4th 62, 65–67 [23
Cal.Rptr.2d 628, 859 P.2d 708]; People v. Piper (1971) 19 Cal.App.3d 248, 250
[96 Cal.Rptr. 643].
CONTROLLED SUBSTANCES CALCRIM No. 2352
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• Compassionate Use Defense Generally. People v. Wright (2006) 40 Cal.4th 81
[51 Cal.Rptr.3d 80, 146 P.3d 531]; People v. Urziceanu (2005) 132 Cal.App.4th
747 [33 Cal.Rptr.3d 859]; People v. Galambos (2002) 104 Cal.App.4th 1147,
1165–1167 [128 Cal.Rptr.2d 844]; People ex rel. Lungren v. Peron (1997) 59
Cal.App.4th 1383, 1389 [70 Cal.Rptr.2d 20].
• Medical Marijuana Program Act Defense. People v. Jackson (2012) 210
Cal.App.4th 525, 538–539 [148 Cal.Rptr.3d 375].
• Specific Intent to Sell Personally or That Another Will Sell Required. People
v. Parra (1999) 70 Cal. App. 4th 222, 226 [70 Cal.App.4th 222] and People v.
Consuegra (1994) 26 Cal. App. 4th 1726, 1732, fn. 4 [32 Cal.Rptr.2d 288].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 90, 101.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.01[1][a]–[e], [3][a], [a.1] (Matthew Bender).
LESSER INCLUDED OFFENSES
• Simple Possession of Marijuana. Health & Saf. Code, § 11357, People v.
Walker (2015) 237 Cal.App.4th 111 [187 Cal.Rptr.3d 606] [duty to instruct
extends to infraction for possessing less than 28.5 g] [reversible error not to
instruct on simple possession of marijuana, an infraction, in case charged as
possession of marijuana for sale].
2353–2359. Reserved for Future Use
CALCRIM No. 2352 CONTROLLED SUBSTANCES
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