CALCRIM No. 2363. Offering or Attempting to Transport for Sale or Offering to Give Away Cannabis: More Than 28.5 Grams (Health & Saf. Code, § 11360(a))

Judicial Council of California Criminal Jury Instructions (2020 edition)

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2363.Offering or Attempting to Transport for Sale or Offering to
Give Away Cannabis: More Than 28.5 Grams (Health & Saf. Code,
§ 11360(a))
The defendant is charged [in Count ] with (offering to give away/
[or] offering to transport for sale/ [or] attempting to transport for sale)
more than 28.5 grams of cannabis, 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 (offered to give away/ [or] offered to transport for
sale/ [or] attempted to transport for sale) cannabis, a controlled
substance, in an amount weighing more than 28.5 grams;
AND
2. When the defendant made the (offer/ [or] attempt), (he/she)
intended to (give away/ [or] transport for sale) the controlled
substance.
<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 (offered to give away/ [or]
offered to transport for sale/ [or] attempted to transport for sale)
cannabis, (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.]
[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.]
283
[Cannabis does not include the weight of any other ingredient combined
with cannabis to prepare topical or oral administrations food, drink, or
other product.]
[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 actually possessed
the cannabis.]
New January 2006; Revised April 2010, February 2015, August 2016, September
2018
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
Also give CALCRIM No. 460, Attempt Other Than Attempted Murder, if the
defendant is charged with attempt to transport.
Defenses - Instructional Duty
If a medical cannabis 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 any of the penalty allegations under Health & Safety Code section 11360(a)(3)
are charged, give CALCRIM No. 2364, as appropriate.
Related Instructions
Use this instruction when the defendant is charged with offering to transport or give
away more than 28.5 grams of cannabis. For transporting or giving away more than
28.5 grams of cannabis, use CALCRIM No. 2361, Transporting for Sale or Giving
Away Cannabis: More Than 28.5 Grams.
AUTHORITY
• Elements. Health & Saf. Code, § 11360(a).
• Knowledge. People v. Romero (1997) 55 Cal.App.4th 147, 151-153, 157, fn. 3
CALCRIM No. 2363 CONTROLLED SUBSTANCES
284
[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 Cannabis. 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) 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].
• 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, § 115.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.01[1][a], [g], [j], [3][a], [a.1] (Matthew
Bender).
CONTROLLED SUBSTANCES CALCRIM No. 2363
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