California Criminal Jury Instructions (CALCRIM) (2017)
2301. Offering to Sell, Transport, etc., a Controlled SubstanceDownload PDF
2301.Offering to Sell, Transport for Sale, etc., a Controlled
Substance (Health & Saf. Code, §§ 11352, 11379)
The defendant is charged [in Count ] with offering to
(sell/furnish/administer/give away/transport for sale/import)
<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
1. The defendant [unlawfully] offered to (sell/furnish/administer/
give away/transport for sale/import into California) a controlled
2. When the defendant made the offer, (he/she) intended to (sell/
furnish/administer/give away/transport for sale/import) the
<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 3B and the deﬁnition of analog substance below instead of
3A. The controlled substance was <insert type of
3B. The controlled substance was an analog of <insert
type of controlled substance>.
[In order to prove that the defendant is guilty of this crime, the People
must prove that <insert name of analog drug> is an analog
of <insert type of controlled substance>. An analog of a
1. Has a chemical structure substantially similar to the structure of
a controlled substance;
2. 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
[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.]
[The People do not need to prove that the defendant actually possessed
the controlled substance.]
New January 2006; Revised February 2014, August 2014
The court has a sua sponte duty to give this instruction deﬁning the elements of
• Elements. Health & Saf. Code, §§ 11352, 11379.
• Administering. Health & Saf. Code, § 11002.
• Speciﬁc Intent. People v. Jackson (1963) 59 Cal.2d 468, 469–470 [30
Cal.Rptr. 329, 381 P.2d 1].
• Deﬁnition of Analog Controlled Substance. 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.
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Public
Peace and Welfare, §§ 64–92.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.01[a], [g]–[j] (Matthew Bender).
LESSER INCLUDED OFFENSES
• Simple Possession of Controlled Substance. Health & Saf. Code, §§ 11350,
11377; People v. Peregrina-Larios (1994) 22 Cal.App.4th 1522, 1524 [28
Cal.Rptr.2d 316] [lesser related offense but not necessarily included]; but see
People v. Tinajero (1993) 19 Cal.App.4th 1541, 1547 [24 Cal.Rptr.2d 298]
[ﬁnding a lesser included offense on factual but not legal basis].
• Possession for Sale. Health & Saf. Code, §§ 11351, 11378; People v.
Peregrina-Larios (1994) 22 Cal.App.4th 1522, 1524 [28 Cal.Rptr.2d 316]
[lesser related offense but not necessarily included] but see People v. Tinajero
(1993) 19 Cal.App.4th 1541, 1547 [24 Cal.Rptr.2d 298] [ﬁnding a lesser
included offense on factual but not legal basis].
CALCRIM No. 2301 CONTROLLED SUBSTANCES
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].)
Transportation for Sale
Effective January 1, 2014, the deﬁnition of “transportation” is limited to
transportation for sale for the purposes of section 11352. Health & Saf. Code,
CONTROLLED SUBSTANCES CALCRIM No. 2301