CALCRIM No. 3412. Compassionate Use (Health & Saf. Code, § 11362.5)

Judicial Council of California Criminal Jury Instructions (2023 edition)

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3412.Compassionate Use (Health & Saf. Code, § 11362.5)
Possession or cultivation of cannabis is lawful if authorized by the
Compassionate Use Act. The Compassionate Use Act allows a person to
possess or cultivate 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 cannabis
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 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 cannabis.]
New February 2015; Revised September 2018, March 2019
Instructional Duty
Pursuant to Health & Saf. Code, § 11362.5, defendants may raise a medical
cannabis 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 cannabis 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”].)
A local ordinance prohibiting cannabis dispensaries does not nullify a defense under
the Medical Marijuana Program Act or the Compassionate Use Act. (People v.
Ahmed (2018) 25 Cal.App.5th 136, 142-143 [235 Cal.Rptr.3d 472]).
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].
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.).
7 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).

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