Criminal Law

2370. Planting, etc., Marijuana

The defendant is charged [in Count ______] with [unlawfully] (planting[,] [or]/ cultivating[,] [or]/ harvesting[,] [or]/ drying[,] [or]/ processing) marijuana, a controlled substance.

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;


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.]]

<Defense: Compassionate Use>

[Possession or cultivation of marijuana is not unlawful if authorized by the Compassionate Use Act. The Compassionate Use Act allows a person to possess or cultivate 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 cultivated must be 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 cultivate marijuana for medical purposes. If the People have not met this burden, you must find the defendant not guilty of this charge.

[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.]]

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

The medical marijuana defense may be raised to a charge of violating Health and Safety Code section 11358. (See Health & Saf. Code, § 11362.5.) 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 also give the bracketed word "unlawfully" in the first paragraph and element 1. 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"].)


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.

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].

Secondary Sources

2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Public Peace and Welfare, §§ 70, 111.

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 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.)

(New January 2006)