California Criminal Jury Instructions (CALCRIM) (2017)

2376. Simple Possession of Marijuana on School Grounds: Misdemeanor

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2376.Simple Possession of Marijuana on School Grounds:
Misdemeanor (Health & Saf. Code, § 11357(d))
The defendant is charged [in Count ] with [unlawfully]
possessing marijuana, a controlled substance, on the grounds of a school
[in violation of Health and Safety Code section 11357(d)].
To prove that the defendant is guilty of this crime, the People must
prove that:
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
controlled substance;
4. The controlled substance was marijuana;
5. The marijuana was in a usable amount but not more than 28.5
grams in weight;
6. The defendant was at least 18 years old;
7. The defendant possessed the marijuana on the grounds of or
inside a school providing instruction in any grade from
kindergarten through 12, when the school was open for classes
or school-related programs.
Ausable amount is a quantity that is enough to be used by someone as
a controlled substance. Useless traces [or debris] are not usable
amounts. On the other hand, a usable amount does not have to be
enough, in either amount or strength, to affect the user.
[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.]
[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.]
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
New January 2006; Revised June 2007, April 2010, October 2010, February 2015
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].)
Give the bracketed paragraph about calculating age if requested. (Fam. Code,
§ 6500; In re Harris (1993) 5 Cal.4th 813, 849–850 [21 Cal.Rptr.2d 373, 855 P.2d
Defenses—Instructional Duty
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(d); 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].
• Usable Amount. People v. Rubacalba (1993) 6 Cal.4th 62, 65–67 [23
Cal.Rptr.2d 628, 859 P.2d 708]; People v. Piper (1971) 19 Cal.App.3d 248, 250
[96 Cal.Rptr. 643].
• 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 [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].
Secondary Sources
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[1][a]–[d], [3][a], [a.1] (Matthew Bender).