California Criminal Jury Instructions (CALCRIM) (2017)

2377. Simple Possession of Concentrated Cannabis

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2377.Simple Possession of Concentrated Cannabis (Health &
Saf. Code, § 11357(a))
The defendant is charged [in Count ] with [unlawfully]
possessing concentrated cannabis, a controlled substance [in violation of
Health and Safety Code section 11357(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant [unlawfully] possessed concentrated cannabis;
2. The defendant knew of its presence;
3. The defendant knew of the substance’s nature or character as
concentrated cannabis;
AND
4. The concentrated cannabis was in a usable amount.
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.
Concentrated cannabis means the separated resin, whether crude or
purified, from the cannabis plant.
[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 concentrated cannabis does not, by itself, mean that a
person has control over that substance.]
New January 2006; Revised June 2007, February 2015, August 2015
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the crime.
When the People allege the defendant has a prior conviction for an offense listed in
Penal Code section 667(e)(2)(C)(iv) or for an offense requiring registration pursuant
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to subdivision (c) of section 290, give CALCRIM No. 3100, Prior Conviction:
Nonbifurcated Trial or CALCRIM No. 3101, Prior Conviction: Bifurcated Trial.
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.
“[C]oncentrated cannabis or hashish is included within the meaning of ‘marijuana’
as the term is used in the Compassionate Use Act of 1996.” (86 Ops.Cal.Atty.Gen.
180, 186 (2003).)
If the medical marijuana instructions are given, then, in element 1, also give the
bracketed word “unlawfully.”
AUTHORITY
• Elements Health & Saf. Code, § 11357(a); People v. Palaschak (1995) 9
Cal.4th 1236, 1242 [40 Cal.Rptr.2d 722, 893 P.2d 717].
• “Concentrated Cannabis” Defined 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].
• 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.).
CONTROLLED SUBSTANCES CALCRIM No. 2377
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• 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 §§ 85–113, 136–151.
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).
2378–2379. Reserved for Future Use
CALCRIM No. 2377 CONTROLLED SUBSTANCES
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