California Criminal Jury Instructions (CALCRIM) (2017)

2370. Planting, etc., Marijuana

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(iii) Planting
2370.Planting, etc., Marijuana (Health & Saf. Code, § 11358)
The defendant is charged [in Count ] with [unlawfully]
(planting[,] [or]/ cultivating[,] [or]/ harvesting[,] [or]/ drying[,] [or]/
processing) marijuana, a controlled substance [in violation of Health
and Safety Code section 11358].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant [unlawfully] (planted[,] [or]/ cultivated[,] [or]/
harvested[,] [or]/ dried[,] [or]/ processed) one or more marijuana
plants;
AND
2. The defendant knew that the substance (he/she) (planted[,] [or]/
cultivated[,] [or]/ harvested[,] [or]/ dried[,] [or]/ processed) was
marijuana.
[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.]]
New January 2006; Revised June 2007, April 2010, February 2015
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
A medical marijuana defense under the Compassionate Use Act or the Medical
Marijuana Program Act may be raised to a charge of violating Health and Safety
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Code section 11358. (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, 460 [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.
AUTHORITY
• Elements. Health & Saf. Code, § 11358.
Harvesting. People v. Villa (1983) 144 Cal.App.3d 386, 390 [192 Cal.Rptr.
674].
• Aider and Abettor Liability. People v. Null (1984) 157 Cal.App.3d 849, 852
[204 Cal.Rptr. 580].
• Medical Marijuana. Health & Saf. Code, §§ 11362.5, 11362.775.
• 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].
• Amount Must Be Reasonably Related to Patient’s Medical Needs. People v.
Trippet (1997) 56 Cal.App.4th 1532, 1550–1551 [66 Cal.Rptr.2d 559].
• 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].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 136–146.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.01[1][a], [b], [3][a], [a.1] (Matthew Bender).
LESSER INCLUDED OFFENSES
• Simple Possession of Marijuana. Health & Saf. Code, § 11357.
RELATED ISSUES
Aider and Abettor Liability of Landowner
In People v. Null (1984) 157 Cal.App.3d 849, 852 [204 Cal.Rptr. 580], the court
held that a landowner could be convicted of aiding and abetting cultivation of
CALCRIM No. 2370 CONTROLLED SUBSTANCES
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marijuana based on his or her knowledge of the activity and failure to prevent it.
“If [the landowner] knew of the existence of the illegal activity, her failure to take
steps to stop it would aid and abet the commission of the crime. This conclusion is
based upon the control that she had over her property.” (Ibid.)
2371–2374. Reserved for Future Use
CONTROLLED SUBSTANCES CALCRIM No. 2370
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