2377. Simple Possession of Concentrated Cannabis
The defendant is charged [in Count ______] with possessing concentrated cannabis, a controlled substance.
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 concentrated cannabis;
5. The controlled substance was in a usable amount.
A usable 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.
[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 substance.]
[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.]
<Defense: Compassionate Use>
[Possession of concentrated cannabis is not unlawful if authorized by the Compassionate Use Act. The Compassionate Use Act allows a person to possess or cultivate marijuana or concentrated cannabis 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 or concentrated cannabis possessed 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 marijuana or concentrated cannabis for medical purposes. If the People have not met this burden, you must find the defendant not guilty of this crime.
[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 or concentrated cannabis.]]
The court has a sua sponte duty to give this instruction defining the elements of the crime.
"Concentrated 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, 194 (2003)) 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, in element 1, also give the bracketed word "unlawfully." 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, §§ 11357(a), 11006.5; People v. Palaschak (1995) 9 Cal.4th 1236, 1242 [40 Cal.Rptr.2d 722, 893 P.2d 717].
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].
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].
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Public Peace and Welfare, §§ 64-92.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145, Narcotics and Alcohol Offenses, § 145.01[a]-[d], [a], [a.1] (Matthew Bender).
(New January 2006)