SERIES 2300 CONTROLLED SUBSTANCES
F 2360 Transporting Or Giving Away Marijuana: Not More Than 285 Grams— Misdemeanor (HS 11360(b))
TABLE OF CONTENTS
F 2360.1 Titles And Identification Of Parties
F 2360.1 Inst 1 Transporting Or Giving Away Marijuana: Not More Than 285 Grams— Misdemeanor—Title
F 2360.1 Inst 2 Identification Of Prosecution And Defendant
F 2360.2 Transporting Or Giving Away Marijuana: Not More Than 285 Grams— Misdemeanor—Tailoring To Facts: Persons, Places, Things And Theories
F 2360.2 Inst 1 Transportation Of Marijuana: Incorporate Definition Of Transportation And Usable Amount In Enumeration Of Elements; Separate Enumeration Of Compound Elements
F 2360.3 Transporting Or Giving Away Marijuana: Not More Than 285 Grams— Misdemeanor—Language That Is Argumentative, Confusing, Etc. [Reserved]
F 2360.4 Transporting Or Giving Away Marijuana: Not More Than 285 Grams— Misdemeanor—Burden Of Proof Issues
F 2360.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 2360.5 Transporting Or Giving Away Marijuana: Not More Than 285 Grams— Misdemeanor—Elements And Definitions
F 2360.5 Inst 1 Giving Away Marijuana: Incorporate Definition Of Usable Amount; Separate Enumeration Of Elements
F 2360.5 Inst 2 Whether The Defendant Must Know The Substance Is Marijuana
F 2360.5 Inst 3 Item Must Be Transported “While Under The Defendant’s Control”
F 2360.5 Inst 4 Right To Control The Substance As Element Of The Charge
F 2360.6 Transporting Or Giving Away Marijuana: Not More Than 285 Grams— Misdemeanor—Defense Theories
F 2360.6 Inst 1 Usable Amount: Pinpoint Instruction
F 2360.6 Inst 2 Medical Marijuana Defense: Mistake Of Fact
F 2360.6 Inst 3 Medical Marijuana: Prosecution Must Prove That The Transportation Was Not Reasonably Related To The Patient’s Medical Needs
F 2360.6 Inst 4 Medical Marijuana Defense: Jurors Must Not Second Guess Physician’s Determination That Medical Use Of Marijuana Is Appropriate
F 2360.6 Inst 5 Medical Marijuana Defense: Defendant Need Not Be “Seriously Ill”
F 2360.6 Inst 6 Minimal Movement Within A Residence Is Not Transportation
F 2360.7 Transporting Or Giving Away Marijuana: Not More Than 285 Grams— Misdemeanor—Preliminary Fact Issues [Reserved]
F 2360.8 Transporting Or Giving Away Marijuana: Not More Than 285 Grams— Misdemeanor— Unanimity/ Duplicity/ Multiplicity [Reserved]
F 2360.9 Transporting Or Giving Away Marijuana: Not More Than 285 Grams— Misdemeanor—Lesser Offense Issues [Reserved]
Return to Series 2300 Table of Contents.
F 2360.1 Titles And Identification Of Parties
F 2360.1 Inst 1 Transporting Or Giving Away Marijuana: Not More Than 285 Grams— Misdemeanor—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 2360.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 2360.2Transporting Or Giving Away Marijuana: Not More Than 285 Grams— Misdemeanor—Tailoring To Facts: Persons, Places, Things And Theories
F 2360.2 Inst 1 Transportation Of Marijuana: Incorporate Definition Of Transportation And Usable Amount In Enumeration Of Elements; Separate Enumeration Of Compound Elements
*Modify CC 2360, Elements, as follows [added language is underlined; deleted language is stricken]:
1. The defendant [unlawfully] (gave away/transported) moved a controlled substance from _______________ <starting location> to _______________ <ending location>;
4 2. The controlled substance was marijuana;
2 3. The defendant knew of its the substance’s presence;
3 4. The defendant knew of the substance’s nature or character as a controlled substance;
5. The marijuana was in a usable large enough amount but not more to be used by someone as a controlled substance regardless of whether the strength or amount was enough to affect the user;
6. The marijuana was less than 28.5 grams in weight.
[Delete paragraph 3 and 5.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Incorporation Of Elements And Definitions—See FORECITE F 417.5 Inst 2.
Separate Enumeration Of Elements—The proposed instruction modifies CALCRIM 2360 so that each enumerated element addresses a single, discrete statutory element of the charge (see FORECITE F 3500.2 Inst 1):
“Controlled” is deleted from Element 1 because that element should address only the element of transportation.
Element 2 addresses whether the substance is marijuana which is the precise statutory element.
Element 4 addresses whether the defendant knew that marijuana is a controlled substance.
Element 5 addresses usable quantity.
Element 6 addresses the statutory maximum by weight.
Tailor To Facts [Element 1 re: Starting And Ending Location Of Transportation]—See FORECITE F 400.2 Inst 1.
Deletion Of Argumentative Language [“Even If Distance Is Short”]—See FORECITE F 416.3 Inst 4.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 2360.3 Transporting Or Giving Away Marijuana: Not More Than 285 Grams— Misdemeanor—Language That Is Argumentative, Confusing, Etc. [Reserved]
F 2360.4 Transporting Or Giving Away Marijuana: Not More Than 285 Grams— Misdemeanor—Burden Of Proof Issues
F 2360.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 2360.5 Transporting Or Giving Away Marijuana: Not More Than 285 Grams— Misdemeanor—Elements And Definitions
F 2360.5 Inst 1 Giving Away Marijuana: Incorporate Definition Of Usable Amount; Separate Enumeration Of Elements
*Modify CC 2360, Elements, as follows [added language is underlined; deleted language is stricken]:
1. The defendant [unlawfully] (gave away/transported) gave away a controlled substance to _______________ <name of person to whom substance was allegedly given>;
4 2. The controlled substance was marijuana;
2 3. The defendant knew of its the substance’s presence;
3 4. The defendant knew of the substance’s nature or character as a controlled substance;
5. The marijuana was in a usable large enough amount but not more to be used by someone as a controlled substance regardless of whether the strength or amount was enough to affect the user;
6. The marijuana was less than 28.5 grams in weight.
[Delete paragraph 3 and 5.]
Points and Authorities
See FORECITE F 417.5 Inst 2 and F 3500.2 Inst 1.
F 2360.5 Inst 2 Whether The Defendant Must Know The Substance Is Marijuana
*Add to CC 2360 Elements as follows:
6. The defendant knew the substance was marijuana.
[Delete paragraph 6 re: knowledge of “which controlled substance” was transported/given away not required.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Knowledge Element—Because HS 11360(b) specifically proscribes “marijuana” (compare HS 11352 which proscribes “controlled substances”) the knowledge element should apply to marijuana. (See generally FORECITE F 2300.6 Inst 3.)
F 2360.5 Inst 3 Item Must Be Transported “While Under The Defendant’s Control”
See FORECITE F 2300.5 Inst 2.
F 2360.5 Inst 4 Right To Control The Substance As Element Of The Charge
See FORECITE F 2300.5 Inst 3.
F 2360.6 Transporting Or Giving Away Marijuana: Not More Than 285 Grams— Misdemeanor—Defense Theories
F 2360.6 Inst 1 Usable Amount: Pinpoint Instruction
See FORECITE F 2300.6 Inst 2.
F 2360.6 Inst 2 Medical Marijuana Defense: Mistake Of Fact
*Add to CC 2360 when appropriate:
An act committed by reason of a mistake of fact which disproves any criminal intent is not a crime.
Thus, a person is not guilty of a crime if [he] [she] commits an act under an actual and reasonable belief in the existence of certain facts and circumstances which, if true, would make the act lawful.
In this case, evidence has been presented that defendant ______________ (insert name of applicable defendant) believed that ________________ (insert basis for the mistake, e.g., defendant believed patient was qualified for medical marijuana). If you have a reasonable doubt as to whether ________________ [defendant] actually and reasonably believed ______________ (basis for mistake), you must resolve that doubt in favor of the defendant and find the defendant not guilty.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Mistake Of Fact—Criminal intent requires that a person intentionally commit the prohibited act with actual knowledge of the facts which bring the act within the provisions of the statute under which he or she is charged. (See People v. Lopez (1986) 188 CA3d 592, 598; see also FORECITE F 1.20a.) Hence, if the defendant commits the act based on an actual and reasonable mistake of fact, there is no criminal intent and the defendant may not be convicted. (See People v. Lucero (1988) 203 CA3d 1011, 1015-18 [defendant mistakenly believed he was acting as under cover officer]; People v. Mayberry (1975) 15 C3d 143, 157 [mistaken belief in consent as defense to sex offense]; People v. Goodman (1970) 8 CA3d 705, 709 [mistake as to whether gun was loaded as defense to murder charge]; People v. Hernandez (1964) 61 C2d 529, 535 [mistake as to age of victim in statutory rape charge per PC 261.5]; People v. Vogel (1956) 46 C2d 798, 800-05 [honest and reasonable belief as defense to charge of bigamy per PC 281].)
As to the requirement that the jury resolve a reasonable doubt as to mistake in favor of the defendant see FORECITE F 4.35a.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
NOTE: The requirement that the mistaken belief be reasonable is required in general intent crimes. (See CJ 4.35, Use Note.) In such cases it may be appropriate to further instruct the jury that the reasonable belief standard requires consideration of a reasonable person in defendant’s position. (See FORECITE F 4.35b.)
CALJIC NOTE: See FORECITE F 12.24.1b.
F 2360.6 Inst 3 Medical Marijuana: Prosecution Must Prove That The Transportation Was Not Reasonably Related To The Patient’s Medical Needs
*Add to CC 2360:
An element which the prosecution must prove is that the [alleged] transportation was not reasonably related to the patient’s current medical needs.
In deciding whether the prosecution has met this burden, consider all the circumstances including, but not limited to, the quantity transported, the method of transportation and the distance of the transportation.
Any juror who has a reasonable doubt that the prosecution has met its burden of proving that the [alleged] transportation was not reasonably related to the accused’s medical needs must vote to acquit.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Medical Necessity Defense—See People v. Wright (2006) 40 C4th 81; see also generally People v. Mower (2002) 28 C4th 457, 481; People v. Jones (2003) 112 CA4th 341, 350; FORECITE F 12.24.1a [Medical Necessity Defense: Defendant Need Only Leave The Jury With A Reasonable Doubt (HS 11357, HS 11358, HS 11359)].
CALJIC NOTE: See FORECITE F 12.24.1c.
F 2360.6 Inst 4 Medical Marijuana Defense: Jurors Must Not Second Guess Physician’s Determination That Medical Use Of Marijuana Is Appropriate
*Add to CC 2360:
The question of whether the medical use of marijuana is appropriate for a patient’s illness is a determination to be made by a physician. A physician’s determination on this medical issue is not to be second-guessed by jurors. As jurors you are bound by this determination and must not second guess it.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Basis For Instruction—People v. Spark (2004) 121 CA4th 259, 268; see also People v. Wright (2006) 40 C4th 81; see also generally FORECITE F 12.24.1a [Medical Necessity Defense: Defendant Need Only Leave The Jury With A Reasonable Doubt (HS 11357, HS 11358, HS 11359)].
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 12.24.1d.
F 2360.6 Inst 5 Medical Marijuana Defense: Defendant Need Not Be “Seriously Ill”
*Add to CC 2360:
The question of whether the medical use of marijuana is appropriate for a patient’s illness is a determination to be made by a physician. A physician’s determination on this medical issue is not to be second-guessed by jurors who might not deem the patient’s condition to be sufficiently “serious.”
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Basis For Instruction—People v. Spark (2004) 121 CA4th 259, 268; see also People v. Wright (2006) 40 C4th 81; see also generally FORECITE F 12.24.1a [Medical Necessity Defense: Defendant Need Only Leave The Jury With A Reasonable Doubt (HS 11357, HS 11358, HS 11359)].
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 12.24.1e.
F 2360.6 Inst 6 Minimal Movement Within A Residence Is Not Transportation
See FORECITE F 2300.6 Inst 4.
F 2360.7 Transporting Or Giving Away Marijuana: Not More Than 285 Grams— Misdemeanor—Preliminary Fact Issues [Reserved]
F 2360.8 Transporting Or Giving Away Marijuana: Not More Than 285 Grams— Misdemeanor—Unanimity/Duplicity/Multiplicity [Reserved]
F 2360.9 Transporting Or Giving Away Marijuana: Not More Than 285 Grams— Misdemeanor—Lesser Offense Issues[Reserved]
