California Criminal Jury Instructions (CALCRIM) (2017)

2350. Sale, Furnishing, etc., of Marijuana

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E. MARIJUANA
(i) Sale, Offering to Sell, Possession for Sale
2350.Sale, Furnishing, etc., of Marijuana (Health & Saf. Code,
§11360(a))
The defendant is charged [in Count ] with [unlawfully] (selling/
furnishing/administering/importing) marijuana, a controlled substance
[in violation of Health and Safety Code section 11360(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant [unlawfully]
(sold/furnished/administered/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;
[AND]
4. The controlled substance was marijuana(;/.)
<Give element 5 when instructing on usable amount; see Bench Notes.>
[AND
5. The controlled substance was in a usable amount.]
[Selling for the purpose of this instruction means exchanging the
marijuana for money, services, or anything of value.]
[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.]
[Marijuana means all or part of the Cannabis sativa L. plant, whether
growing or not, including the seeds and resin extracted from any part of
the plant. [It also includes every compound, manufacture, salt,
derivative, mixture, or preparation of the plant, its seeds, or resin.] [It
does not include the mature stalks of the plant; fiber produced from the
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stalks; oil or cake made from the seeds of the plant; any other
compound, manufacture, salt, derivative, mixture, or preparation of the
mature stalks (except the resin extracted therefrom), fiber, oil, or cake;
or the sterilized seed of the plant, which is incapable of germination.]]
[The People do not need to prove that the defendant knew which
specific controlled substance (he/she) (sold/furnished/administered/
imported).]
[A person does not have to actually hold or touch something to (sell/
furnish/administer/import) 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 December 2008, October 2010, August 2014, February
2015
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the crime.
Sale of a controlled substance does not require a usable amount. (See People v.
Peregrina-Larios (1994) 22 Cal.App.4th 1522, 1524 [28 Cal.Rptr.2d 316].) When
the prosecution alleges sales, do not give element 5 or the bracketed definition of
“usable amount.” There is no case law on whether furnishing, administering, or
importing require usable quantities. (See People v. Emmal (1998) 68 Cal.App.4th
1313, 1316 [80 Cal.Rptr.2d 907] [transportation requires usable quantity]; People v.
Ormiston (2003) 105 Cal.App.4th 676, 682 [129 Cal.Rptr.2d 567] [same].) Element
5 and the definition of usable amount are provided for the court to use at its
discretion.
When instructing on the definition of “marijuana,” the court may choose to give
just the first bracketed sentence or may give the first bracketed sentence with either
or both of the bracketed sentences following. The second and third sentences
should be given if requested and relevant based on the evidence. (See Health &
Saf. Code, § 11018 [defining marijuana].)
Defenses—Instructional Duty
If a medical marijuana defense applies under the Compassionate Use Act or the
Medical Marijuana Program Act (See Health & Saf. Code, §§ 11362.5, 11362.775.),
the burden is on the defendant to produce sufficient evidence to raise a reasonable
doubt that the conduct was lawful. (People v. Mower (2002) 28 Cal.4th 457, 470
[122 Cal.Rptr.2d 326, 49 P.3d 1067]; People v. Jackson (2012) 210 Cal.App.4th
525, 538–539 [148 Cal.Rptr.3d 375].) If the defendant introduces substantial
evidence, sufficient to raise a reasonable doubt that the conduct may have been
lawful, the court has a sua sponte duty to give the relevant defense instruction:
CALCRIM No. 2350 CONTROLLED SUBSTANCES
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CALCRIM No. 3412, Compassionate Use Defense, or CALCRIM No. 3413,
Collective or Cooperative Cultivation Defense.
If the medical marijuana instructions are given, then also give the bracketed word
“unlawfully” in the first paragraph and element 1.
AUTHORITY
• Elements. Health & Saf. Code, § 11360(a); People v. Van Alstyne (1975) 46
Cal.App.3d 900, 906 [121 Cal.Rptr. 363].
• Knowledge. People v. Romero (1997) 55 Cal.App.4th 147, 151–153, 157, fn. 3
[64 Cal.Rptr.2d 16]; People v. Winston (1956) 46 Cal.2d 151, 158 [293 P.2d
40].
• Selling. People v. Lazenby (1992) 6 Cal.App.4th 1842, 1845 [8 Cal.Rptr.2d
541].
• 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].
• Constructive vs. Actual Possession. People v. Barnes (1997) 57 Cal.App.4th
552, 556 [67 Cal.Rptr.2d 162].
• 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].
• Compassionate Use Defense Generally. People v. Wright (2006) 40 Cal.4th 81
[51 Cal.Rptr.3d 80, 146 P.3d 531]; People v. Urziceanu (2005) 132 Cal.App.4th
747 [33 Cal.Rptr.3d 859]; People v. Galambos (2002) 104 Cal.App.4th 1147,
1165–1167 [128 Cal.Rptr.2d 844]; People ex rel. Lungren v. Peron (1997) 59
Cal.App.4th 1383, 1389 [70 Cal.Rptr.2d 20].
• Medical Marijuana Program Act Defense. People v. Jackson (2012) 210
Cal.App.4th 525, 538–539 [148 Cal.Rptr.3d 375].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 115.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.01[1][a]–[c], [g]–[i], [3][a], [a.1] (Matthew
Bender).
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
CONTROLLED SUBSTANCES CALCRIM No. 2350
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v. Peregrina-Larios (1994) 22 Cal.App.4th 1522, 1524 [28 Cal.Rptr.2d 316]
[lesser related offense but not necessarily included].)
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