2301. Offering to Sell, Transport, etc., a Controlled Substance

The defendant is charged [in Count ______] with offering to (sell/ furnish/ administer/give away/transport/import) <insert type of controlled substance>, a controlled substance.

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant [unlawfully] offered to (sell/furnish/ administer/give away/transport/import into California) <insert type of controlled substance>, a controlled substance;

AND

2. When the defendant made the offer, (he/she) intended to (sell/furnish/administer/give away/transport/import) the controlled substance.

[Selling for the purpose of this instruction means exchanging a controlled substance for money, services, or anything of value.]

[A person transports something if he or she carries or moves it from one location to another, even if the distance is short.]

[A person administers a substance if he or she applies it directly to the body of another person by injection, or by any other means, or causes the other person to inhale, ingest, or otherwise consume the substance.]

[The People do not need to prove that the defendant actually possessed the controlled substance.]

Bench Notes

Instructional Duty

The court has a sua sponte duty to give this instruction defining the elements of the crime.

Authority

Elements. Health & Saf. Code, §§ 11352, 11379.

Administering. Health & Saf. Code, § 11002.

Specific Intent. People v. Jackson (1963) 59 Cal.2d 468, 469-470 [30 Cal.Rptr. 329, 381 P.2d 1].

Secondary Sources

2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Public Peace and Welfare, §§ 64-92.

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145, Narcotics and Alcohol Offenses, § 145.01[1][a], [g]-[j] (Matthew Bender).

Lesser Included Offenses

Simple Possession of Controlled Substance. Health & Saf. Code, §§ 11350, 11377; People v. Tinajero (1993) 19 Cal.App.4th 1541, 1547 [24 Cal.Rptr.2d 298]; but see People v. Peregrina-Larios (1994) 22 Cal.App.4th 1522, 1524 [28 Cal.Rptr.2d 316] [lesser related offense but not necessarily included].

Possession for Sale. Health & Saf. Code, §§ 11351, 11378; People v. Tinajero (1993) 19 Cal.App.4th 1541, 1547 [24 Cal.Rptr.2d 298]; but see People v. Peregrina-Larios (1994) 22 Cal.App.4th 1522, 1524 [28 Cal.Rptr.2d 316] [lesser related offense but not necessarily included].

Related Issues

No Requirement That Defendant Delivered or Possessed Drugs

A defendant may be convicted of offering to sell even if there is no evidence that he or she delivered or ever possessed any controlled substance. (People v. Jackson (1963) 59 Cal.2d 468, 469 [30 Cal.Rptr. 329, 381 P.2d 1]; People v. Brown (1960) 55 Cal.2d 64, 68 [9 Cal.Rptr. 816, 357 P.2d 1072].)

(New January 2006)