California Criminal Jury Instructions (CALCRIM) (2017)
2375. Simple Possession of Marijuana: MisdemeanorDownload PDF
(iv) Simple Possession
2375.Simple Possession of Marijuana: Misdemeanor (Health &
Saf. Code, § 11357(c))
The defendant is charged [in Count ] with [unlawfully]
possessing more than 28.5 grams of marijuana, a controlled substance
[in violation of Health and Safety Code section 11357(c)].
To prove that the defendant is guilty of this crime, the People must
1. The defendant [unlawfully] possessed a controlled substance;
2. The defendant knew of its presence;
3. The defendant knew of the substance’s nature or character as a
4. The controlled substance was marijuana;
5. The marijuana possessed by the defendant weighed more than
[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.]]
[The People do not need to prove that the defendant knew which
speciﬁc controlled substance (he/she) possessed, only that (he/she) was
aware of the substance’s presence and that it was a controlled
[Two or more people may possess something at the same time.]
[A person does not have to actually hold or touch something to possess
it. It is enough if the person has (control over it/ [or] the right to
control it), either personally or through another person.]
[Agreeing to buy a controlled substance does not, by itself, mean that a
person has control over that substance.]
New January 2006; Revised June 2007, April 2010, October 2010, April 2011,
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, in element 1, also give the
bracketed word “unlawfully.”
• Elements. Health & Saf. Code, § 11357(c); People v. Palaschak (1995) 9
Cal.4th 1236, 1242 [40 Cal.Rptr.2d 722, 893 P.2d 717].
• “Marijuana” Deﬁned. Health & Saf. Code, § 11018.
• 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.
• 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]; People v. Frazier (2005)
128 Cal.App.4th 807, 820–821].
• 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].
CONTROLLED SUBSTANCES CALCRIM No. 2375
• 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].
• This Instruction Upheld. People v. Busch (2010) 187 Cal.App.4th 150, 160
[113 Cal.Rptr.3d 683].
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 76–77.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.01[a], [b], [d], [a], [a.1] (Matthew
CALCRIM No. 2375 CONTROLLED SUBSTANCES