Is a criminal charged with possession of a small amount of marijuana for sale entitled to a simple possession instruction?

People v. Sava (1987) 190 Cal.App.3d 935, [235 Cal.Rptr. 694], which held a felony defendant is not entitled to jury instructions on lesser related offenses that are mere infractions in light of the "fundamental procedural differences between the treatment of infractions and more serious offenses." ( Ibid . ) We decline the invitation because procedural distinctions do not excuse the court from fulfilling its constitutional duty to instruct on all pertinent issues, even issues involving infractions.³

Here, it was undisputed that defendant possessed marijuana. It was also undisputed that simple possession of marijuana was a lesser included offense of possession of marijuana for sale. Without a simple possession instruction, the jury had only two choices: convict on the felony sales count or acquit altogether. This is precisely the all-or-nothing choice that People v. Birks

[237 Cal.App.4th 117]