Section 2364 | CALCRIM (Jury Instructions)

If any penalty allegations under Health & Safety Code section 11360(a)(3) are
charged, give CALCRIM No. 2364, as appropriate.
Defenses—Instructional Duty
If a medical cannabis 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.
Give CALCRIM No. 3415, Legal Use Defense, on request if supported by
substantial evidence.
AUTHORITY
•
Elements. Health & Saf. Code, § 11360(a); People v. Van Alstyne (1975) 46
Cal.App.3d 900, 906 [121 Cal.Rptr. 363].
•
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].
•
Selling. People v. Lazenby (1992) 6 Cal.App.4th 1842, 1845 [8 Cal.Rptr.2d 541].
•
Administering. Health & Saf. Code, § 11002.
•
Administering Does Not Include Self-Administering. People v. Label (1974) 43
Cal.App.3d 766, 770–771 [119 Cal.Rptr. 522].
•
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].
•
Compassionate Use Defense Generally. People v. Wright (2006) 40 Cal.4th 81
[51 Cal.Rptr.3d 80, 146 P.3d 531]; People v. Urziceanu (2005) 132 Cal.App.4th
747 [33 Cal.Rptr.3d 859]; People v. Galambos (2002) 104 Cal.App.4th 1147,
1165–1167 [128 Cal.Rptr.2d 844]; People ex rel. Lungren v. Peron (1997) 59
Cal.App.4th 1383, 1389 [70 Cal.Rptr.2d 20].
•
Medical Marijuana Program Act Defense. People v. Jackson (2012) 210
Cal.App.4th 525, 538–539 [148 Cal.Rptr.3d 375].
•
Definition of Cannabis. Health & Saf. Code, § 11018.
•
Definition of Industrial Hemp. Health & Saf. Code, § 11018.5.
LESSER INCLUDED OFFENSES
•
Simple Possession Is Not a Lesser Included Offense of This Crime. (People v.
CONTROLLED SUBSTANCES
CALCRIM No. 2350
273

extracted from any part of the plant; and every compound, manufacture,
salt, derivative, mixture, or preparation of the plant, its seeds or resin
produced from the seeds.]
[The People do not need to prove that the defendant actually possessed
the cannabis.]
New January 2006; Revised December 2008, February 2015, September 2018
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
If any of th