Criminal Law

2391. Offering to Sell, Furnish, etc., Marijuana to Minor

The defendant is charged [in Count ______] with offering to (sell/ furnish/administer/give 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] offered to (sell/furnish/ administer/give away) marijuana, 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;

3. At that time, the defendant was 18 years of age or older;

AND

4. At that time, <insert name of alleged recipient> was under (18/14) years of age.

[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.]

[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 there from), fiber, oil, or cake; or the sterilized seed of the plant, which is incapable of germination.]]

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

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

Bench Notes

Instructional Duty

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

In element 4, give the alternative of "under 14 years of age" only if the defendant is charged with offering to furnish, administer, or give away marijuana to a minor under 14. (Health & Saf. Code, 11361(a).)

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].

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.

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

Lesser Included Offenses

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

(New January 2006)