Brief Bank # B-871 (Re: F 12.24 n1 [Marijuana Cultivation: Knowledge Requirement].)
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Date Of Brief: November, 2000
THERE WAS INSUFFICIENT EVIDENCE, AND
INSUFFICIENT JURY INSTRUCTIONS, UPON WHICH TO
BASE A CONVICTION FOR CULTIVATION OF MARIJUANA
As with the charge of possession for sale of marijuana, there is a requirement in a charge of cultivation of marijuana that the person have knowledge of the narcotic character of the drug. Appellant asserts that there was a complete failure of proof on this element, and that there were incorrect jury instructions on the point.
B. KNOWLEDGE OF NARCOTIC CHARACTER OF THE DRUG
The seminal case stating that the defendant must have knowledge of the narcotic character of marijuana, in a charge of cultivation of marijuana, is People v. Gorg (1955) 45 Cal.2d 776, 780. This holding was cited with approval in People v. Coria (1999) 21 Cal.4th 868, 874-875.
As shown in the prior argument, there was a dearth of proof that appellant had knowledge of the narcotic effect of marijuana.
C. FAULTY JURY INSTRUCTIONS
The trial court instructed the jury pursuant to CALJIC No. 12.24 as follows:
Defendants are accused in Count One of having violated section 11358 of the Health and Safety Code, a crime. Every person who plants, cultivates or processes any marijuana or any part thereof is guilty of a violation of Health and Safety Code section 11358, a crime. In order to prove this crime, each of the following elements must be proved:
1. A person planted, cultivated or processed a marijuana plant; and
2. That person knew it was a marijuana plant or some part thereof. (CT 107.)
The jury instructions were thus deficient in failing to inform the jury that one of the elements of cultivation of marijuana is that the person must know of the narcotic character of the plant.
The most recent decisions of the United States and the California Supreme Courts indicate that failure to instruct on one element of a charge is not reversible error per se, but must be tested under the “harmless beyond a reasonable doubt” standard of Chapman v. California (1967) 386 U.S. 18. (Neder v. United States (1999) 527 U.S. [119 S.Ct. 1827, 1831-1848]; People v. Flood (1998) 18 Cal.4th 470, 500-505.)
The error in the instant case was not harmless beyond a reasonable doubt. If the jury had been correctly instructed, they would have had to weigh the evidence that appellant had knowledge of the narcotic effect or character of marijuana. As demonstrated in the previous argument, although there was ample evidence that appellant had knowledge of the medicinal character of marijuana, there was a dearth of evidence that he had knowledge of the narcotic character of the drug. The evidence basically just proved that appellant was growing the marijuana in order to alleviate the pain and other symptoms of his cerebral palsy and his post-traumatic arthritis. This evidence in no way proved that appellant was aware of any other effect of marijuana. Therefore the failure to require the jury to weigh this element of the charge could not have been harmless beyond a reasonable doubt.
If this court determines that there was insufficient evidence to support the judgment of conviction, then that judgment must be reversed with directions to dismiss that count. If this court only determines that the jury instructions on the cultivation count were erroneous, the judgment of conviction on that count must be reversed with directions to afford a retrial on that count.