2352. Possession for Sale of Marijuana
The defendant is charged [in Count ______] with possessing for sale marijuana, a controlled substance.
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. When the defendant possessed the controlled substance, (he/she) intended to sell it;
5. The controlled substance was marijuana;
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.
A usable 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 there from), 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, only that (he/she) was aware of the substance's presence and that it was a controlled substance.]
[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.]
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].)
Elements. Health & Saf. Code, §§ 11359, 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].
Compassionate Use Not a Defense. 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].
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Public Peace and Welfare, §§ 68-93.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145, Narcotics and Alcohol Offenses, § 145.01[a]-[e], [a], [a.1] (Matthew Bender).
Lesser Included Offenses
Simple Possession of Marijuana. Health & Saf. Code, § 11357.
Medical Marijuana Not a Defense to Possession for Sale
The medical marijuana defense provided by Health and Safety Code section 11362.5 is not available to a charge of possession for sale under Health and Safety Code section 11359. (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].) The defense is not available even if the marijuana is provided to someone permitted to use marijuana for medical reasons (People v. Galambos, supra, 104 Cal.App.4th at pp. 1165-1167) or if the marijuana is provided free of charge (People ex rel. Lungren v. Peron, supra, 59 Cal.App.4th at p. 1389). Evidence of a compassionate use defense may be admissible if the defendant denies intent to sell and asserts such a defense to simple possession or cultivation. (See People v. Galambos, supra, 104 Cal.App.4th at p. 1165 [trial court properly instructed on medical marijuana defense to simple possession and cultivation for personal use]; People v. Wright (2004) 121 Cal.App.4th 1356 [18 Cal.Rptr.3d 220], review granted Dec. 1, 2004, S128442 [Supreme Court granted review on issue of whether evidence of compassionate use admissible in case where possession for sale charged].)
(New January 2006)