CALCRIM No. 2350. Sale, Furnishing, Administering or Importing of Cannabis (Health & Saf. Code, § 11360(a))

Judicial Council of California Criminal Jury Instructions (2023 edition)

Download PDF
Bg639
E. CANNABIS
(i) Sale, Offering to Sell, Possession for Sale
2350.Sale, Furnishing, Administering or Importing of Cannabis
(Health & Saf. Code, § 11360(a))
The defendant is charged [in Count ] with (selling[,]/[ or]
furnishing[,]/ [or] administering/importing) cannabis, a controlled
substance [in violation of Health and Safety Code section 11360(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (sold[,]/ [or] furnished[,]/ [or] administered[,]/ [or]
imported into California) a controlled substance;
2. The defendant knew of its presence;
3. The defendant knew of the substance’s nature or character as a
controlled substance;
[AND]
4. The controlled substance was cannabis(;/.)
<Give element 5 when instructing on usable amount; see Bench Notes.>
[AND
5. The controlled substance was in a usable amount.]
<Sentencing Factor on defendant’s age>
If you find the defendant guilty of this crime [as charged in Count[s]
], you must then decide whether the People have proved the
additional allegation that when the defendant (sold[,]/ [or] furnished[,]/
[or] administered[,]/ [or] imported into California) cannabis, (he/she) was
18 years of age or older.
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
[Selling for the purpose of this instruction means exchanging the
cannabis for money, services, or anything of value.]
[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.]
[A usable amount is a quantity that is enough to be used by someone as
271
Bg63a
a controlled substance. Useless traces [or debris] are not usable amounts.
On the other hand, a usable amount does not have to be enough, in
either amount or strength, to affect the user.]
[Cannabis means all or part of the Cannabis sativa L. plant, whether
growing or not, including the seeds and resin extracted from any part of
the plant. [It also includes every compound, manufacture, salt,
derivative, mixture, or preparation of the plant, its seeds, or resin.]]
<If applicable, give the definition of industrial hemp: Health & Saf. Code,
§ 11018.5>
[Cannabis does not include industrial hemp. Industrial hemp means a
fiber or oilseed crop, or both, that only contain types of the plant
Cannabis sativa L. with no more than three-tenths of 1 percent
tetrahydrocannabinol from the dried flowering tops, whether growing or
not. Industrial hemp may include the seeds of the plant; the resin
extracted from any part of the plant; and every compound, manufacture,
salt, derivative, mixture, or preparation of the plant, its seeds or resin
produced from the seeds.]
[The People do not need to prove that the defendant knew which specific
controlled substance (he/she) (sold/furnished/administered/imported).]
[A person does not have to actually hold or touch something to (sell/
furnish/administer/import) it. It is enough if the person has (control over
it/ [or] the right to control it), either personally or through another
person.]
New January 2006; Revised December 2008, October 2010, August 2014, February
2015, September 2018
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
Sale of a controlled substance does not require a usable amount. (See People v.
Peregrina-Larios (1994) 22 Cal.App.4th 1522, 1524 [28 Cal.Rptr.2d 316].) When
the prosecution alleges sales, do not give element 5 or the bracketed definition of
“usable amount.” There is no case law on whether furnishing, administering, or
importing require usable quantities. (See People v. Emmal (1998) 68 Cal.App.4th
1313, 1316 [80 Cal.Rptr.2d 907] [transportation requires usable quantity]; People v.
Ormiston (2003) 105 Cal.App.4th 676, 682 [129 Cal.Rptr.2d 567] [same].) Element
5 and the definition of usable amount are provided for the court to use at its
discretion.
CALCRIM No. 2350 CONTROLLED SUBSTANCES
272
Bg63b
If any penalty allegations under Health & Safety Code section 11360(a)(3) are
charged, give CALCRIM No. 2364, as appropriate.
Defenses - Instructional Duty
If a medical cannabis defense applies under the Compassionate Use Act or the
Medical Marijuana Program Act (See Health & Saf. Code, §§ 11362.5, 11362.775.),
the burden is on the defendant to produce sufficient evidence to raise a reasonable
doubt that the conduct was lawful. (People v. Mower (2002) 28 Cal.4th 457, 470
[122 Cal.Rptr.2d 326, 49 P.3d 1067]; People v. Jackson (2012) 210 Cal.App.4th
525, 538-539 [148 Cal.Rptr.3d 375].) If the defendant introduces substantial
evidence, sufficient to raise a reasonable doubt that the conduct may have been
lawful, the court has a sua sponte duty to give the relevant defense instruction:
CALCRIM No. 3412, Compassionate Use Defense, or CALCRIM No. 3413,
Collective or Cooperative Cultivation Defense.
Give CALCRIM No. 3415, Legal Use Defense, on request if supported by
substantial evidence.
AUTHORITY
• Elements. Health & Saf. Code, § 11360(a); People v. Van Alstyne (1975) 46
Cal.App.3d 900, 906 [121 Cal.Rptr. 363].
• Knowledge. People v. Romero (1997) 55 Cal.App.4th 147, 151-153, 157, fn. 3
[64 Cal.Rptr.2d 16]; People v. Winston (1956) 46 Cal.2d 151, 158 [293 P.2d 40].
• Selling. People v. Lazenby (1992) 6 Cal.App.4th 1842, 1845 [8 Cal.Rptr.2d 541].
• Administering. Health & Saf. Code, § 11002.
• Administering Does Not Include Self-Administering. People v. Label (1974) 43
Cal.App.3d 766, 770-771 [119 Cal.Rptr. 522].
• Constructive vs. Actual Possession. People v. Barnes (1997) 57 Cal.App.4th 552,
556 [67 Cal.Rptr.2d 162].
• Usable Amount. People v. Rubacalba (1993) 6 Cal.4th 62, 65-67 [23 Cal.Rptr.2d
628, 859 P.2d 708]; People v. Piper (1971) 19 Cal.App.3d 248, 250 [96
Cal.Rptr. 643].
• Compassionate Use Defense Generally. People v. Wright (2006) 40 Cal.4th 81
[51 Cal.Rptr.3d 80, 146 P.3d 531]; People v. Urziceanu (2005) 132 Cal.App.4th
747 [33 Cal.Rptr.3d 859]; People v. Galambos (2002) 104 Cal.App.4th 1147,
1165-1167 [128 Cal.Rptr.2d 844]; People ex rel. Lungren v. Peron (1997) 59
Cal.App.4th 1383, 1389 [70 Cal.Rptr.2d 20].
• Medical Marijuana Program Act Defense. People v. Jackson (2012) 210
Cal.App.4th 525, 538-539 [148 Cal.Rptr.3d 375].
• Definition of Cannabis. Health & Saf. Code, § 11018.
• Definition of Industrial Hemp. Health & Saf. Code, § 11018.5.
LESSER INCLUDED OFFENSES
• Simple Possession Is Not a Lesser Included Offense of This Crime. (People v.
CONTROLLED SUBSTANCES CALCRIM No. 2350
273
Bg63c
Murphy (2007) 154 Cal.App.4th 979, 983-984 [64 Cal.Rptr.3d 926]; 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 Is Not a Lesser Included Offense of This Crime. (People v.
Peregrina-Larios (1994) 22 Cal.App.4th 1522, 1524 [28 Cal.Rptr.2d 316] [lesser
related offense but not necessarily included].)
SECONDARY SOURCES
7 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 115.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.01[1][a]-[c], [g]-[i], [3][a], [a.1] (Matthew
Bender).
CALCRIM No. 2350 CONTROLLED SUBSTANCES
274

© Judicial Council of California.