Criminal Law

2390. Sale, Furnishing, etc., of Marijuana to Minor

The defendant is charged [in Count ______] with (selling/ furnishing/administering/giving away) marijuana, a controlled substance, to someone under (18/14) years of age.

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

1. The defendant [unlawfully] (sold/furnished/administered/ gave away) marijuana, a controlled substance, to <insert name of alleged recipient>;

2. The defendant knew of the presence of the controlled substance;

3. The defendant knew of the substance's nature or character as a 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 (18/14) years of age;

<Give element 6 when instructing on usable amount; see Bench Notes.>

[AND

6. The marijuana was in a usable amount.]

[Selling for the purpose of this instruction means exchanging the marijuana 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 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.]

[Marijuana 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.] [It does not include the mature stalks of the plant; fiber produced from the stalks; oil or cake made from the seeds of the plant; any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil, or cake; or the sterilized seed of the plant, which is incapable of germination.]]

[The People do not need to prove that the defendant knew which specific controlled substance (he/she) (sold/furnished/administered/ gave away), only that (he/she) was aware of the substance's presence and that it was a controlled substance.]

[A person does not have to actually hold or touch something to (sell it/furnish it/administer it/give it away). It is enough if the person has (control over it/ [or] the right to control it), either personally or through another person.]

[Under the law, a person becomes one year older as soon as the first minute of his or her birthday has begun.]

Bench Notes

Instructional Duty

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

In element 5, give the alternative of "under 14 years of age" only if the defendant is charged with furnishing, administering, or giving away marijuana to a minor under 14. (Health & Saf. Code, 11361(a).)

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 use bracketed element 6 or the definition of usable amount. There is no case law on whether furnishing, administering, or giving away 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 6 and the bracketed definition of usable amount are provided here for the court to use at its discretion.

When instructing on the definition of "marijuana," the court may choose to give just the first bracketed sentence or may give the first bracketed sentence with either or both of the bracketed sentences following. The second and third sentences should be given if requested and relevant based on the evidence. (See Health & Saf. Code, 11018 [defining marijuana].)

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, 11361.

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].

Administering. Health & Saf. Code, 11002.

Knowledge. People v. Horn (1960) 187 Cal.App.2d 68, 74-75 [9 Cal.Rptr. 578].

Selling. People v. Lazenby (1992) 6 Cal.App.4th 1842, 1845 [8 Cal.Rptr.2d 541].

Constructive vs. Actual Possession. People v. Barnes (1997) 57 Cal.App.4th 552, 556 [67 Cal.Rptr.2d 162].

Usable Amount. People v. Piper (1971) 19 Cal.App.3d 248, 250 [96 Cal.Rptr. 643].

Secondary Sources

2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Public Peace and Welfare, 103-105.

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]-[c], [h], [i], [3][a] (Matthew Bender).

Lesser Included Offenses

Sale to Person Not a Minor. Health & Saf. Code, 11360.

Simple Possession of Marijuana. Health & Saf. Code, 11357.

Possession for Sale of Marijuana. Health & Saf. Code, 11359.

Related Issues

No Defense of Good Faith Belief Over 18

"The specific intent for the crime of selling cocaine to a minor is the intent to sell cocaine, not the intent to sell it to a minor. [Citations omitted.] It follows that ignorance as to the age of the offeree neither disproves criminal intent nor negates an evil design on the part of the offerer. It therefore does not give rise to a 'mistake of fact' defense to the intent element of the crime. [Citations omitted.]" (People v. Williams (1991) 233 Cal.App.3d 407, 410-411 [284 Cal.Rptr. 454].)

(New January 2006)