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Name: People v. Busch
Case #: C061186
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 08/04/2010

Because knowledge of the weight of marijuana is not an element of the crimes of transportation of more than 28.5 grams of marijuana or possession of more than 28.5 grams of marijuana, the court need not instruct the jury that a conviction for either offense is dependent on a finding of defendant’s knowledge of the weight of the contraband. Appellant was stopped for driving a vehicle with expired registration and the vehicle was searched. A baggie, containing 95.5 grams of marijuana, was located in the center console and a second baggie, containing 22.5 grams of marijuana, was found on the rear passenger seat. Appellant admitted the car was his. Cooper was a front seat passenger. Appellant claimed he met Cooper in Pacifica and agreed to give him a ride to Sacramento so Cooper could buy marijuana, which they would smoke. Appellant did not know how much marijuana was in the vehicle but assumed there was no more than six to seven grams. Following his conviction for transportation and possession of more than 28.5 grams of marijuana, appellant appealed, arguing the court erred in failing to instruct the jury that it must find appellant had knowledge of the weight of marijuana. The appellate court rejected the argument. Health and Safety Code sections 11360, subdivision (b) and 11357, subdivision (c) contain no knowledge requirement as to weight. The People only need to prove a defendant has knowledge of the presence of marijuana and its narcotic character. There is no due process violation in not extending a knowledge requirement to weight as "defendants who knowingly possess controlled substances are strictly liable for weight enhancement regardless of knowledge of the quantity." (People v. Meza (1995) 38 Cal.App.4th 1741.) The court also found that possession of marijuana is not a lesser-included crime of transportation of marijuana when a defendant is prosecuted as an aider and abettor and, thus, can be convicted of both crimes.