California Criminal Jury Instructions (CALCRIM) (2017)

2361. Transporting or Giving Away Marijuana: More Than 28.5 Grams

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2361.Transporting or Giving Away Marijuana: More Than 28.5
Grams (Health & Saf. Code, § 11360(a))
The defendant is charged [in Count ] with [unlawfully] (giving
away/transporting for sale) more than 28.5 grams of marijuana, a
controlled substance [in violation of Health and Safety Code section
11360(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant [unlawfully] (gave away/transported for sale) 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;
AND
5. The marijuana possessed by the defendant weighed more than
28.5 grams.
[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 for sale
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).]
[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.]
New January 2006; Revised April 2010, October 2010, April 2011, February 2015,
August 2016
266
0058
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].)
Defenses—Instructional Duty
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.
Related Instructions
Use this instruction when the defendant is charged with transporting or giving away
more than 28.5 grams of marijuana. 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. For transporting or giving away
28.5 grams or less, use CALCRIM No. 2360, Transporting or Giving Away
Marijuana: Not More Than 28.5 Grams—Misdemeanor. 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.
AUTHORITY
• Elements. Health & Saf. Code, § 11360(a).
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. Wright (2006) 40
Cal.4th 81, 87–88 [51 Cal.Rptr.3d 80, 146 P.3d 531]; People v. Trippet (1997)
CONTROLLED SUBSTANCES CALCRIM No. 2361
267
0059
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].
• 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].
• This Instruction Upheld. People v. Busch (2010) 187 Cal.App.4th 150,
155–156 [113 Cal.Rptr.3d 683].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 115.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.01[1][a], [b], [g], [3][a], [a.1] (Matthew
Bender).
LESSER INCLUDED OFFENSES
• Transporting, Giving Away, etc., Not More Than 28.5 Grams of
Marijuana. Health & Saf. Code, § 11360(b).
RELATED ISSUES
See the Related Issues section to CALCRIM No. 2360, Transporting or Giving
Away Marijuana: Not More Than 28.5 Grams—Misdemeanor.
CALCRIM No. 2361 CONTROLLED SUBSTANCES
268
0060