CALCRIM No. 2391. Offering to Sell, Furnish, etc., Cannabis to Minor (Health & Saf. Code, § 11361)

Judicial Council of California Criminal Jury Instructions (2023 edition)

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2391.Offering to Sell, Furnish, etc., Cannabis to Minor (Health &
Saf. Code, § 11361)
The defendant is charged [in Count ] with offering to (sell/furnish/
administer/give away) cannabis, a controlled substance, to someone
under (18/14) years of age [in violation of Health and Safety Code
section 11361].
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) cannabis, 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
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.]
[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. It 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.]
[Under the law, a person becomes one year older as soon as the first
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minute of his or her birthday has begun.]
[The People do not need to prove that the defendant actually possessed
the cannabis.]
New January 2006; Revised September 2018
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 cannabis to a minor under
14. (Health & Saf. Code, § 11361(a).)
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.
• “Cannabis” Defined. Health & Saf. Code, § 11018.
LESSER INCLUDED OFFENSES
• Offering to Sell to Person Not a Minor. Health & Saf. Code, § 11360.
• Simple Possession of Cannabis. Health & Saf. Code, § 11357.
• Possession for Sale of Cannabis. Health & Saf. Code, § 11359.
• “Cannabis” Defined. Health & Saf. Code, §11018.
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)
CONTROLLED SUBSTANCES CALCRIM No. 2391
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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
Cannabis to Minor.
SECONDARY SOURCES
7 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).
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