CALCRIM No. 2375. Simple Possession of Cannabis or Concentrated Cannabis: Misdemeanor (Health & Saf. Code, § 11357(b))

Judicial Council of California Criminal Jury Instructions (2022 edition)

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(iv) Simple Possession
2375.Simple Possession of Cannabis or Concentrated Cannabis:
Misdemeanor (Health & Saf. Code, § 11357(b))
The defendant is charged [in Count ] with possessing (more than
28.5 grams of cannabis/more than 8 grams of concentrated cannabis), a
controlled substance [in violation of Health and Safety Code section
11357(b)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant possessed a controlled substance;
2. The defendant knew of its presence;
3. The defendant knew of the substance’s nature or character as a
controlled substance;
4. The controlled substance was (cannabis/concentrated cannabis);
AND
5. The (cannabis/concentrated cannabis) possessed by the defendant
weighed more than (28.5 grams/8 grams).
<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 possessed
(cannabis/concentrated 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,
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salt, derivative, mixture, or preparation of the plant, its seeds or resin
produced from the seeds.]
[Cannabis does not include the weight of any other ingredient combined
with cannabis to prepare topical or oral administrations food, drink, or
other product.]
[Concentrated cannabis means the separated resin, whether crude or
purified, from the cannabis plant.]
[The People do not need to prove that the defendant knew which specific
controlled substance (he/she) possessed.]
[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,
February 2015, September 2018
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
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.
AUTHORITY
Elements. Health & Saf. Code, § 11357(b); People v. Palaschak (1995) 9
Cal.4th 1236, 1242 [40 Cal.Rptr.2d 722, 893 P.2d 717].
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Definition of Cannabis. Health & Saf. Code, § 11018.
Definition of Industrial Hemp. Health & Saf. Code, § 11018.5.
Definition of Concentrated Cannabis. Health & Saf. Code, § 11006.5.
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].
Constructive vs. Actual Possession. People v. Barnes (1997) 57 Cal.App.4th
552, 556 [67 Cal.Rptr.2d 162].
Medical Cannabis. 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 [27 Cal.Rptr.3d 336].
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].
Prior Version of This Instruction Upheld. People v. Busch (2010) 187
Cal.App.4th 150, 160 [113 Cal.Rptr.3d 683].
SECONDARY SOURCES
7 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[1][a], [b], [d], [3][a], [a.1] (Matthew
Bender).
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