2300. Sale, Transportation, etc., of Controlled Substance
The defendant is charged [in Count ______] with (selling/ furnishing/ administering/giving away/transporting/importing) <insert type of controlled substance>, a controlled substance.
To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant (sold/furnished/administered/gave away/ transported/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;
4. The controlled substance was <insert type of controlled substance>(;/.)
<Give element 5 when instructing on usable amount; see Bench Notes.>
5. The controlled substance was in a usable amount.]
[Selling for the purpose of this instruction means exchanging a controlled substance for money, services, or anything of value.]
[A person transports something if he or she carries or moves it from one location to another, even if the distance is short.]
[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.]
[The People do not need to prove that the defendant knew which specific controlled substance (he/she) (sold/furnished/administered/ gave away/transported/imported), 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/furnish/ administer/transport/import/give it away) [it]. It is enough if the person has (control over it/ [or] the right to control it), either personally or through another person.]
The court has a sua sponte duty to give this instruction defining the elements of the crime.
Transportation of a controlled substance requires a "usable amount." (People v. Emmal (1998) 68 Cal.App.4th 1313, 1316 [80 Cal.Rptr.2d 907]; People v. Ormiston (2003) 105 Cal.App.4th 676, 682 [129 Cal.Rptr.2d 567].) Sale of a controlled substance does not. (See People v. Peregrina-Larios (1994) 22 Cal.App.4th 1522, 1524 [28 Cal.Rptr.2d 316].) When the prosecution alleges transportation, give bracketed element 5 and the definition of usable amount. When the prosecution alleges sales, do not use these portions. There is no case law on whether furnishing, administering, giving away, or importing require usable quantities.
If the defendant is charged with attempting to import or transport a controlled substance, give CALCRIM No. 460, Attempt Other Than Attempted Murder, with this instruction.
Elements. Health & Saf. Code, §§ 11352, 11379.
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].
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].
Transportation: Usable Amount. People v. Emmal (1998) 68 Cal.App.4th 1313, 1316 [80 Cal.Rptr.2d 907]; People v. Ormiston (2003) 105 Cal.App.4th 676, 682 [129 Cal.Rptr.2d 567].
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].
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Public Peace and Welfare, §§ 94-102.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145, Narcotics and Alcohol Offenses, § 145.01 (Matthew Bender).
Lesser Included Offenses
Simple Possession of Controlled Substance. Health & Saf. Code, §§ 11350, 11377; People v. Tinajero (1993) 19 Cal.App.4th 1541, 1547 [24 Cal.Rptr.2d 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. Health & Saf. Code, §§ 11351, 11378; People v. Tinajero (1993) 19 Cal.App.4th 1541, 1547 [24 Cal.Rptr.2d 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].
Note: In reviewing the appropriateness of sentencing enhancements, People v. Valenzuela (1995) 33 Cal.App.4th 1445, 1451 [39 Cal.Rptr.2d 781], finds that offering to sell is a lesser included offense of selling, and that therefore a lesser sentence is appropriate for offering to sell. However, the cases it cites in support of that conclusion do not address that specific issue. Because offering to sell is a specific-intent crime (see People v. Jackson (1963) 59 Cal.2d 468, 469-470 [30 Cal.Rptr. 329, 381 P.2d 1]) and selling does not require specific intent, the committee does not include offering to sell as a lesser included offense.
Transportation does not require intent to sell or distribute. (People v. Rogers (1971) 5 Cal.3d 129, 134 [95 Cal.Rptr. 601, 486 P.2d 129].) Transportation also does not require personal possession by the defendant. (Ibid.) "Proof of his knowledge of the character and presence of the drug, together with his control over the vehicle, is sufficient to establish his guilt . . . ." (Id. at pp. 135-136.) Transportation of a controlled substance includes transporting by riding a bicycle (People v. LaCross (2001) 91 Cal.App.4th 182, 187 [109 Cal.Rptr.2d 802]) or walking (People v. Ormiston (2003) 105 Cal.App.4th 676, 685 [129 Cal.Rptr.2d 567]). The controlled substance must be moved "from one location to another," but the movement may be minimal. (Id. at p. 684.)
Transportation for Personal Use
A defendant convicted of transporting a controlled substance "for personal use" is entitled to be sentenced to probation with drug treatment pursuant to Penal Code section 1210(a); see People v. Barasa (2002) 103 Cal.App.4th 287, 295-297 [126 Cal.Rptr.2d 628].) Two cases have held that the judge, not the jury, may determine whether the defendant transported the drugs for personal use. (People v. Barasa, supra, 103 Cal.App.4th at pp. 294-295; People v. Glasper (2003) 113 Cal.App.4th 1104, 1115 [7 Cal.Rptr.3d 4].)
(New January 2006)