2362. Offering to Transport or Give Away Marijuana: Not More Than 28.5 Grams - Misdemeanor
The defendant is charged [in Count ______] with (offering to give away/offering to transport/attempting to transport) 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] (offered to give away/offered to transport/attempted to transport) marijuana, a controlled substance, in an amount weighing 28.5 grams or less;
2. When the defendant made the (offer/attempt), (he/she) intended to (give away/transport) the controlled substance.
[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.]
<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 People do not need to prove that the defendant actually possessed the controlled 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].)
Also give CALCRIM No. 460, Attempt Other Than Attempted Murder, if the defendant is charged with attempt to transport.
The medical marijuana defense is available in some cases where the 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 offering to transport or give away 28.5 grams or less of marijuana. For transporting or giving away 28.5 grams or less of marijuana, use CALCRIM No. 2360, Transporting or Giving Away Marijuana: Not More Than 28.5 Grams—Misdemeanor. 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 more than 28.5 grams, use CALCRIM No. 2361, Transporting or Giving 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].
Specific Intent. People v. Jackson (1963) 59 Cal.2d 468, 469-470 [30 Cal.Rptr. 329, 381 P.2d 1].
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].
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], [g], [j], [a], [a.1] (Matthew Bender).
See the Related Issues section to CALCRIM No. 2360, Transporting or Giving Away Marijuana: Not More Than 28.5 Grams—Misdemeanor.
(New January 2006)