Criminal Law

2316. Offer to Sell Substitute Substance

The defendant is charged [in Count ______] with intending to (sell/ transport/administer/give/furnish/deliver) a noncontrolled substance in lieu of <insert name of controlled substance>.

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant [unlawfully] offered to (sell/transport/ administer/give/furnish/deliver) <insert name of controlled substance>, a controlled substance;


2. When the defendant made the offer, (he/she) intended to (sell/transport/administer/give/furnish/deliver) a noncontrolled substance in lieu of <insert name of controlled substance>.]

[Selling for the purpose of this instruction means exchanging a noncontrolled 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 noncontrolled substance.]

Bench Notes

Instructional Duty

The court has a sua sponte duty to give this instruction defining the elements of the crime.


Elements. Health & Saf. Code, §§ 11355, 11382; People v. McDaniel (1979) 24 Cal.3d 661, 669-670 [156 Cal.Rptr. 865, 597 P.2d 124].

Secondary Sources

2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Public Peace and Welfare, § 102.

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145, Narcotics and Alcohol Offenses, § 145.01[1][a], [g]-[j] (Matthew Bender).

(New January 2006)