CALCRIM No. 2381. Offering to Sell, Furnish, etc., Controlled Substance to Minor (Health & Saf. Code, §§ 11353, 11354, 11380(a))

Judicial Council of California Criminal Jury Instructions (2023 edition)

Download PDF
Bg65b
2381.Offering to Sell, Furnish, etc., Controlled Substance to
Minor (Health & Saf. Code, §§ 11353, 11354, 11380(a))
The defendant is charged [in Count ] with offering to (sell/furnish/
administer/give away) <insert type of controlled substance>,
a controlled substance, to someone under 18 years of age [in violation of
<insert appropriate code section[s]>].
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) a controlled substance to <insert name of
alleged recipient>;
2. When the defendant made the offer, (he/she) intended to (sell/
furnish/administer/give away) the controlled substance;
<If the controlled substance is not listed in the schedules set forth in
sections 11054 through 11058 of the Health and Safety Code, give
paragraph 3B and the definition of analog substance below instead of
paragraph 3A.>
3A. The controlled substance was <insert type of
controlled substance>;
3B. The controlled substance was an analog of <insert
type of controlled substance>;
4. At that time, the defendant was 18 years of age or older;
AND
5. At that time, <insert name of alleged recipient> was
under 18 years of age.
[In order to prove that the defendant is guilty of this crime, the People
must prove that <insert name of analog drug> is an analog
of <insert type of controlled substance>. An analog of a
controlled substance:
[1. Has a chemical structure substantially similar to the structure of
a controlled substance(./;)]
[OR]
[(2/1). Has, is represented as having, or is intended to have a stimulant,
depressant, or hallucinogenic effect on the central nervous system
substantially similar to or greater than the effect of a controlled
substance.]]
[Selling for the purpose of this instruction means exchanging a
305
Bg65c
controlled substance 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.]
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
New January 2006; Revised February 2014, September 2017
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
If the defendant is charged with violating Health and Safety Code section 11354(a),
in element 3, the court should replace “18 years of age or older” with “under 18
years of age.”
Give the bracketed paragraph about calculating age if requested. (Fam. Code,
§ 6500; In re Harris (1993) 5 Cal.4th 813, 849-850 [21 Cal.Rptr.2d 373, 855 P.2d
391].)
AUTHORITY
• Elements. Health & Saf. Code, §§ 11353, 11354, 11380(a).
• Age of Defendant Element of Offense. People v. Montalvo (1971) 4 Cal.3d 328,
332 [93 Cal.Rptr. 581, 482 P.2d 205].
• No Defense of Good Faith Belief Offeree Over 18. People v. Williams (1991)
233 Cal.App.3d 407, 410-411 [284 Cal.Rptr. 454]; People v. Lopez (1969) 271
Cal.App.2d 754, 760 [77 Cal.Rptr. 59].
• Specific Intent. People v. Jackson (1963) 59 Cal.2d 468, 469-470 [30 Cal.Rptr.
329, 381 P.2d 1].
• Administering. Health & Saf. Code, § 11002.
• Definition of Analog Controlled Substance. Health & Saf. Code, § 11401; People
v. Davis (2013) 57 Cal.4th 353, 357, fn. 2 [159 Cal.Rptr.3d 405, 303 P.3d 1179].
• No Finding Necessary for “Expressly Listed” Controlled Substance. People v.
Davis,supra, 57 Cal.4th at p. 362, fn. 5.
LESSER INCLUDED OFFENSES
• Offering to Sell to Person Not a Minor. Health & Saf. Code, §§ 11352, 11360,
11379.
• Simple Possession of Controlled Substance. Health & Saf. Code, §§ 11350,
11377; People v. Tinajero (1993) 19 Cal.App.4th 1541, 1547 [24 Cal.Rptr.2d
CALCRIM No. 2381 CONTROLLED SUBSTANCES
306
Bg65d
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 of Controlled Substance. Health & Saf. Code, §§ 11351,
11378; People v. Tinajero,supra, 19 Cal.App.4th at p. 1547; but see People v.
Peregrina-Larios,supra, 22 Cal.App.4th at p. 1524 [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].)
See the Related Issues section to CALCRIM No. 2380, Sale, Furnishing, etc., of
Controlled Substance to Minor.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 124-126.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, § 73.06[1] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.01[1][a], [h]-[j], [3][a] (Matthew Bender).
CONTROLLED SUBSTANCES CALCRIM No. 2381
307

© Judicial Council of California.