California Criminal Jury Instructions (CALCRIM) (2017)

2380. Sale, Furnishing, etc., of Controlled Substance to Minor

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F. OFFENSES INVOLVING MINORS
(i) Controlled Substances
2380.Sale, Furnishing, etc., of Controlled Substance to Minor
(Health & Saf. Code, §§ 11353, 11354, 11380(a))
The defendant is charged [in Count ] with (selling/furnishing/
administering/giving away) <insert type of controlled
substance>, a controlled substance, to someone under 18 years of age [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] (sold/furnished/administered/gave
away) a controlled substance to <insert name of
alleged recipient>;
2. The defendant knew of the presence of the controlled substance;
3. The defendant knew of the substance’s nature or character as a
controlled substance;
4. At that time, the defendant was 18 years of age or older;
5. At that time, <insert name of alleged recipient> was
under 18 years of age;
[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 6B and the definition of analog substance below instead of
paragraph 6A.>
6A. The controlled substance was <insert type of
controlled substance>(;/.)
6B. The controlled substance was an analog of <insert
type of controlled substance>(;/.)
<Give element 7 when instructing on usable amount; see Bench Notes.>
[AND
7. The controlled substance was in a usable amount.]
[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:
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1. Has a chemical structure substantially similar to the structure of
a controlled substance;
OR
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
substance.]
[Selling for the purpose of this instruction means exchanging
<insert type of controlled substance> 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.]
[The People do not need to prove that the defendant knew which
specific controlled substance (he/she) (sold/furnished/administered/gave
away).]
[A person does not have to actually hold or touch something to (sell it/
furnish it/administer it/give it away). It is enough if the person has
(control over it/ [or] the right to control it), either personally or through
another person.]
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
New January 2006; Revised October 2010, February 2014
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 use bracketed element 7 or the definition of
usable amount. There is no case law on whether furnishing, administering, or
giving away 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].) The
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bracketed element 7 and the definition of usable amount are provided here for the
court to use at its discretion.
If the defendant is charged with violating Health and Safety Code section 11354(a),
in element 4, the court should replace “18 years of age or older” with “under 18
years of age.”
Give the bracketed paragraph about calculating age if requested. (Fam. Code,
§ 6500; In re Harris (1993) 5 Cal.4th 813, 849–850 [21 Cal.Rptr.2d 373, 855 P.2d
391].)
AUTHORITY
• Elements. Health & Saf. Code, §§ 11353, 11354, 11380(a).
Age of Defendant Element of Offense. People v. Montalvo (1971) 4 Cal.3d
328, 332 [93 Cal.Rptr. 581, 482 P.2d 205].
• No Defense of Good Faith Belief Offeree Over 18. People v. Williams (1991)
233 Cal.App.3d 407, 410–411 [284 Cal.Rptr. 454]; People v. Lopez (1969) 271
Cal.App.2d 754, 760 [77 Cal.Rptr. 59].
• Administering. Health & Saf. Code, § 11002.
• Knowledge. People v. Horn (1960) 187 Cal.App.2d 68, 74–75 [9 Cal.Rptr.
578].
• Selling. People v. Lazenby (1992) 6 Cal.App.4th 1842, 1845 [8 Cal.Rptr.2d
541].
• 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].
• 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.
Secondary Sources
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Public
Peace and Welfare, §§ 103–105.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, § 73.06[1] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144,
Crimes Against Order, § 144.02, Ch. 145, Narcotics and Alcohol Offenses,
§ 145.01[1][a]–[c], [h], [i], [3][a], [d] (Matthew Bender).
LESSER INCLUDED OFFENSES
• Sale to Person Not a Minor. Health & Saf. Code, §§ 11352, 11379.
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• Simple Possession of Controlled Substance. Health & Saf. Code, §§ 11350,
11377; People v. Tinajero (1993) 19 Cal.App.4th 1541, 1547 [24 Cal.Rptr.2d
298]; but see People v. Peregrina-Larios,supra, 22 Cal.App.4th at p. 1524
[lesser related offense but not necessarily included].
• Possession for Sale of Controlled Substance. Health & Saf. Code, §§ 11351,
11378; People v. Tinajero,supra, 19 Cal.App.4th at p. 1547; but see People v.
Peregrina-Larios,supra, 22 Cal.App.4th at p. 1524 [lesser related offense but
not necessarily included].
RELATED ISSUES
No Defense of Good Faith Belief Over 18
“The specific intent for the crime of selling cocaine to a minor is the intent to sell
cocaine, not the intent to sell it to a minor. [Citations omitted.] It follows that
ignorance as to the age of the offeree neither disproves criminal intent nor negates
an evil design on the part of the offerer. It therefore does not give rise to a
‘mistake of fact’ defense to the intent element of the crime. [Citations omitted.]”
(People v. Williams,supra, 233 Cal.App.3d at pp. 410–411.)
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