CALCRIM No. 2352. Possession for Sale of Cannabis (Health & Saf. Code, § 11359)

Judicial Council of California Criminal Jury Instructions (2020 edition)

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2352.Possession for Sale of Cannabis (Health & Saf. Code,
§ 11359)
The defendant is charged [in Count ] with possessing for sale
cannabis, 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 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 cannabis;
AND
6. The controlled substance was in a usable amount.
<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 for
sale, (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.]
[If you find the defendant guilty of this crime [as charged in Count[s]
], and you find that the defendant was 18 years of age or older,
then you must decide whether the People have proved the following
allegation[s].] [You must decide whether the People have proved (this/
these) allegation[s] and return a separate finding for each allegation.]
To prove (this/these) allegation[s] [for each crime], the People must prove
that:
<Insert the appropriate bracketed paragraphs if the defendant is charged
under one of the paragraphs of Health and Safety Code section 11359(c) and
sequentially number them as appropriate>
[___. When the defendant possessed cannabis, (he/she) knew that (he/
she) was (selling/ [or] attempting to sell) cannabis to another
person under the age of 18 years(./;)]
274
[___. The defendant has at least two prior convictions for possession of
cannabis for sale(./;)]
[___. The defendant has at least one prior conviction for ( )
<insert description of offense requiring registration pursuant to Penal
Code section 290 or for an offense specified in clause (iv) of
subparagraph (c) of paragraph (2) of subdivision (e) of Penal Code
section 667.>](./;)
<Insert the following bracketed paragraphs if defendant is charged with
violating Health and Safety Code section 11359(d)>
[___. The defendant was 21 years of age or older when (he/she) (hired/
employed/used) a person 20 years of age or younger to
[unlawfully] (cultivate[,]/ [or] transport[,]/ [or] carry[,]/ [or]
sell[,]/ [or] offer to sell[,]/ [or] give away[,]/ [or] prepare for
sale[,]/ [or] peddle) cannabis;
AND
[___. When the defendant (hired/employed/used) a person 20 years of
age or younger to [unlawfully] (cultivate[,]/ [or] transport[,]/ [or]
carry[,]/ [or] sell[,]/ [or] offer to sell[,]/ [or] give away[,]/ [or]
prepare for sale[,]/ [or] peddle) cannabis, (he/she) knew that
person’s age and the tasks that the person would be doing.]
Selling for the purpose of this instruction means exchanging the cannabis
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.
[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,
salt, derivative, mixture, or preparation of the plant, its seeds or resin
produced from the seeds.]
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[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 December 2008, October 2010, February 2015,
February 2016, September 2018
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
Give the appropriate bracketed elements if the offense is charged as a felony.
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.
Give CALCRIM No. 3415, Legal Use Defense, on request if supported by
substantial evidence.
If the defendant is charged with prior convictions under subdivisions (c)(1) or (2) of
section 11359, give CALCRIM No. 3100, Prior Conviction: Nonbifurcated Trial or
CALCRIM No. 3101, Prior Conviction: Bifurcated Trial, as appropriate.
AUTHORITY
• Elements. Health & Saf. Code, § 11359.
• 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].
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276
• 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].
• Definition of Cannabis. Health & Saf. Code, § 11018.
• Definition of Industrial Hemp. Health & Saf. Code, § 11018.5.
SECONDARY SOURCES
7 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).
2353-2359. Reserved for Future Use
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