Section 3412 | CALCRIM (Jury Instructions)

[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.]
New January 2006; Revised December 2008, October 2010, February 2015,
February 2016, September 2018
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
Give the appropriate bracketed elements if the offense is charged as a felony.
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.
Give CALCRIM No. 3415, Legal Use Defense, on request if supported by
substantial evidence.
If the defendant is charged with prior convictions under subdivisions (c)(1) or (2) of
section 11359, give CALCRIM No. 3100, Prior Conviction: Nonbifurcated Trial or
CALCRIM No. 3101, Prior Conviction: Bifurcated Trial, as appropriate.
AUTHORITY
•
Elements. Health & Saf. Code, § 11359.
•
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].
•
Selling. People v. Lazenby (1992) 6 Cal.App.4th 1842, 1845 [8 Cal.Rptr.2d 541].
•
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].
CALCRIM No. 2352
CONTROLLED SUBSTANCES
280

<Give the appropriate paragraphs below if defendant has prior convictions
specified in Health & Safety Code section 11358(d)(1–2)>
[___. The defendant has at least two prior convictions for
<insert description of prior convictions for this crime>(./;)]
[___. The defendant has at least one prior conviction for
<insert description of offense[s] specified in clause (iv) of
subparagraph (C) of paragraph (2) of subdivision (e) of Section 667
of the Penal Code or an offense requiring registration pursuant to
subdivision (c) of Section 290 of the Penal Code>.]
[Cannabis means all or part of the Cannabis sativa L. plant, whether
growing o