The court has a sua sponte duty to give this instruction deﬁning the elements of
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.
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.
• 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
• 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