2360. Transporting or Giving Away Marijuana: Not More Than 28.5 Grams - Misdemeanor
The defendant is charged [in Count ______] with (giving away/ transporting) 28.5 grams or less of marijuana, a controlled substance.
To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant [unlawfully] (gave away/transported) 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 marijuana;
5. The marijuana was in a usable amount but not more than 28.5 grams in weight.
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 therefrom), fiber, oil, or cake; or the sterilized seed of the plant, which is incapable of germination.]]
[A person transports something if he or she carries or moves it from one location to another, even if the distance is short.]
[The People do not need to prove that the defendant knew which specific controlled substance (he/she) (gave away/transported), only that (he/she) was aware of the substance's presence and that it was a controlled substance.]
[A person does not have to actually hold or touch something to (give it away/ transport it). It is enough if the person has (control over it/ [or] the right to control it), either personally or through another person.]
<Defense: Compassionate Use>
[Possession or transportation of marijuana is not unlawful if authorized by the Compassionate Use Act. The Compassionate Use Act allows a person to possess or transport marijuana for personal medical purposes [or as the primary caregiver of a patient with a medical need] when a physician has recommended [or approved] such use. The amount of marijuana possessed or transported must be reasonably related to the patient's current medical needs. In deciding if marijuana was transported for medical purposes, also consider whether the method, timing, and distance of the transportation were reasonably related to the patient's current medical needs. The People have the burden of proving beyond a reasonable doubt that the defendant was not authorized to possess or transport marijuana for medical purposes. If the People have not met this burden, you must find the defendant not guilty of this crime.
[A primary caregiver is someone who has consistently assumed responsibility for the housing, health, or safety of a patient who may legally possess or cultivate marijuana.]]
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].)
The medical marijuana defense is available in some cases where a defendant is charged with transportation. (People v. Trippet (1997) 56 Cal.App.4th 1532, 1550 [66 Cal.Rptr.2d 559]; but see People v. Young (2001) 92 Cal.App.4th 229, 237 [111 Cal.Rptr.2d 726].) The burden is on the defendant to produce sufficient evidence to raise a reasonable doubt that possession was lawful. (People v. Mower (2002) 28 Cal.4th 457, 460 [122 Cal.Rptr.2d 326, 49 P.3d 1067]; People v. Jones (2003) 112 Cal.App.4th 341, 350 [4 Cal.Rptr.3d 916] [error to exclude defense where defendant's testimony raised reasonable doubt about physician approval]; see also People v. Tilehkooh (2003) 113 Cal.App.4th 1433, 1441 [7 Cal.Rptr.3d 226] [defendant need not establish "medical necessity"].) If the defendant meets this burden, the court has a sua sponte duty to give the bracketed paragraph of medical marijuana instructions.
If the medical marijuana instructions are given, then, in element 1, also give the bracketed word "unlawfully." If the evidence shows that a physician may have "approved" but not "recommended" the marijuana use, give the bracketed phrase "or approved" in the paragraph on medical marijuana. (People v. Jones, supra, 112 Cal.App.4th at p. 347 ["approved" distinguished from "recommended"].)
Use this instruction when the defendant is charged with transporting or giving away 28.5 grams or less of marijuana. For offering to transport or give away 28.5 grams or less of marijuana, use CALCRIM No. 2362, Offering to Transport or Give Away Marijuana: Not More Than 28.5 Grams—Misdemeanor. For transporting or giving away more than 28.5 grams, use CALCRIM No. 2361, Transporting or Giving Away Marijuana: More Than 28.5 Grams. For offering to transport or give away more than 28.5 grams of marijuana, use CALCRIM No. 2363, Offering to Transport or Give Away Marijuana: More Than 28.5 Grams.
Elements. Health & Saf. Code, § 11360(b).
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 Marijuana. Health & Saf. Code, § 11362.5.
Compassionate Use Defense to Transportation. People v. Trippet (1997) 56 Cal.App.4th 1532, 1550 [66 Cal.Rptr.2d 559].
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].
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].
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Public Peace and Welfare, §§ 94-101.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145, Narcotics and Alcohol Offenses, § 145.01[a]-[c], [g], [a], [a.1] (Matthew Bender).
Transportation does not require intent to sell or distribute. (People v. Rogers (1971) 5 Cal.3d 129, 134 [95 Cal.Rptr. 601, 486 P.2d 129].) Transportation also does not require personal possession by the defendant. (Ibid.) "Proof of his knowledge of the character and presence of the drug, together with his control over the vehicle, is sufficient to establish his guilt . . . ." (Id. at pp. 135-136.) Transportation of a controlled substance includes transporting by riding a bicycle (People v. LaCross (2001) 91 Cal.App.4th 182, 187 [109 Cal.Rptr.2d 802]) or walking (People v. Ormiston (2003) 105 Cal.App.4th 676, 685 [129 Cal.Rptr.2d 567]). The controlled substance must be moved "from one location to another," but the movement may be minimal. (Id. at p. 684.)
Medical Marijuana Not a Defense to Giving Away
The medical marijuana defense provided by Health and Safety Code section 11362.5 is not available to a charge of sales under Health and Safety Code section 11360. (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).
(New January 2006)