California Criminal Jury Instructions (CALCRIM) (2017)

3412. Compassionate Use (Health & Saf. Code, § 11362.5)

Download PDF
3412.Compassionate Use (Health & Saf. Code, § 11362.5)
Possession or cultivation of marijuana is lawful if authorized by the
Compassionate Use Act. The Compassionate Use Act allows a person to
possess or cultivate marijuana (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 possessed or cultivated 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 or cultivate marijuana 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.]
New February 2015
BENCH NOTES
Instructional Duty
Pursuant to Health & Saf. Code, § 11362.5, defendants may raise a medical
marijuana defense in appropriate cases. 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, 470 [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 evidence shows that a physician may have “approved” but not
“recommended” the marijuana use, give the bracketed phrase “or approved” in the
first paragraph of this instruction. (People v. Jones,supra, 112 Cal.App.4th at p.
347 [“approved” distinguished from “recommended”].)
AUTHORITY
• Elements. Health & Saf. Code, § 11362.5; People v. Jackson (2012) 210
Cal.App.4th 525, 538–539 [148 Cal.Rptr.3d 375].
• Burden of Proof for Defense of Medical Use. People v. Mower (2002) 28
Cal.4th 457, 470 [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].
933
0029
• 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.).
Secondary Sources
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 136.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.01[3] (Matthew Bender).
CALCRIM No. 3412 DEFENSES AND INSANITY
934
0030