CALCRIM No. 2301. Offering to Sell, Transport for Sale, etc., a Controlled Substance (Health & Saf. Code, §§ 11352, 11379)

Judicial Council of California Criminal Jury Instructions (2022 edition)

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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
prove that:
1. The defendant [unlawfully] offered to (sell/furnish/administer/give
away/transport for sale/import into California) a controlled
substance;
2. When the defendant made the offer, (he/she) intended to (sell/
furnish/administer/give away/transport for sale/import) the
controlled substance.
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 3B and the definition of analog substance below instead of
paragraph 3A.>
3A. The controlled substance was <insert type of
controlled substance>.
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
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
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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, September 2017
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
AUTHORITY
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. 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 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].
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
CALCRIM No. 2301 CONTROLLED SUBSTANCES
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(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,
§ 11352(c).
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 85-113, 147-151.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.01[1][a], [g]-[j] (Matthew Bender).
CONTROLLED SUBSTANCES CALCRIM No. 2301
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