California Criminal Jury Instructions (CALCRIM) (2017)

2351. Offering to Sell, Furnish, etc., Marijuana

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2351.Offering to Sell, Furnish, etc., Marijuana (Health & Saf.
Code, § 11360)
The defendant is charged [in Count ] with offering to
[unlawfully] (sell/furnish/administer/import) marijuana, a controlled
substance [in violation of Health and Safety Code section 11360].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant [unlawfully] offered to (sell/furnish/administer/
import into California) marijuana, a controlled substance;
AND
2. When the defendant made the offer, (he/she) intended to (sell/
furnish/administer/import) the controlled substance.
[Selling for the purpose of this instruction means exchanging 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.]
[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
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 actually possessed
the marijuana.]
New January 2006; Revised December 2008, February 2015
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the crime.
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
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should be given if requested and relevant based on the evidence. (See Health &
Saf. Code, § 11018 [defining marijuana].)
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. 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; People v. Van Alstyne (1975) 46
Cal.App.3d 900, 906 [121 Cal.Rptr. 363].
• Specific Intent. People v. Jackson (1963) 59 Cal.2d 468, 469–470 [30
Cal.Rptr. 329, 381 P.2d 1].
• 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].
• 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], [g]–[j], [3][a], [a.1] (Matthew
Bender).
CALCRIM No. 2351 CONTROLLED SUBSTANCES
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LESSER INCLUDED OFFENSES
• Simple Possession of Marijuana. Health & Saf. Code, § 11357.
• Possession for Sale of Marijuana. Health & Saf. Code, § 11359.
RELATED ISSUES
No Requirement That Defendant Delivered or Possessed Drugs
Adefendant 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].)
CONTROLLED SUBSTANCES CALCRIM No. 2351
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