CALCRIM No. 2300. Sale, Transportation for Sale, etc., of Controlled Substance (Health & Saf. Code, §§ 11352, 11379)

Judicial Council of California Criminal Jury Instructions (2020 edition)

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A. CONTROLLED SUBSTANCES
2300.Sale, Transportation for Sale, etc., of Controlled Substance
(Health & Saf. Code, §§ 11352, 11379)
The defendant is charged [in Count ] with
(selling/furnishing/administering/giving away/transporting for sale/
importing) <insert type of controlled substance>, a controlled
substance [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 (sold/furnished/administered/gave
away/transported for sale/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;
<When instructing on transportation for sale, give element 4>
[AND]
[4. When the defendant transported the controlled substance, (he/
she) intended (to sell it/[or] that someone else sell it);]
[AND]
<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 4/5B and the definition of analog substance below instead of
paragraph 4/5A.>
(4/5)A. The controlled substance was <insert type of
controlled substance>(;/.)
(4/5)B. The controlled substance was an analog of <insert
type of controlled substance>(;/.)
<Give element 4/5/6 when instructing on usable amount; see Bench
Notes.>
[AND
(4/5/6). The controlled substance was in a usable amount.]
[In order to prove that the defendant is guilty of this crime, the People
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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
controlled substance for money, services, or anything of value.]
[A person transports for sale if he or she carries or moves something
from one location to another for sale, 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 for sale/imported).]
[A person does not have to actually hold or touch something to
(sell/furnish/administer/transport it for sale/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.]
New January 2006; Revised October 2010, February 2014, August 2014, February
2016, September 2017, March 2019
BENCH NOTES
Instructional Duty
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
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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.
AUTHORITY
• 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].
• 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.
• Intent Requirement for Transportation for Sale. People v. Lua (2017) 10
Cal.App.5th 1004, 1014-1016 [217 Cal.Rptr.3d 23].
LESSER INCLUDED OFFENSES
• Simple Possession Is Not a Lesser Included Offense of This Crime. (People v.
Murphy (2007) 154 Cal.App.4th 979, 983-984 [64 Cal.Rptr.3d 926]; 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 Is Not a Lesser Included Offense of This Crime. (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, Valenzuela v.
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Superior Court (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.
RELATED ISSUES
Transportation
Transportation does not require personal possession by the defendant. (People v.
Rogers (1971) 5 Cal.3d 129, 134 [95 Cal.Rptr. 601, 486 P.2d 129] [abrogated in part
by statute on other grounds].) 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.)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 115-123.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.01[1] (Matthew Bender).
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