California Criminal Jury Instructions (CALCRIM) (2017)

2390. Sale, Furnishing, etc., of Marijuana to Minor

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(ii) Marijuana
2390.Sale, Furnishing, etc., of Marijuana to Minor (Health & Saf.
Code, § 11361)
The defendant is charged [in Count ] with (selling/furnishing/
administering/giving away) marijuana, a controlled substance, to
someone under (18/14) years of age [in violation of Health and Safety
Code section 11361].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant [unlawfully] (sold/furnished/administered/gave
away) marijuana, 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;
[AND]
5. At that time, <insert name of alleged recipient> was
under (18/14) years of age;
<Give element 6 when instructing on usable amount; see Bench Notes.>
[AND
6. The marijuana 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/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
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the crime.
In element 5, give the alternative of “under 14 years of age” only if the defendant
is charged with furnishing, administering, or giving away marijuana to a minor
under 14. (Health & Saf. Code, § 11361(a).)
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 6 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].) Element
6 and the bracketed definition of usable amount are provided here 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].)
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].)
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AUTHORITY
• Elements. Health & Saf. Code, § 11361.
• 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. Piper (1971) 19 Cal.App.3d 248, 250 [96 Cal.Rptr.
643].
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. 145,
Narcotics and Alcohol Offenses, § 145.01[1][a]–[c], [h], [i], [3][a] (Matthew
Bender).
LESSER INCLUDED OFFENSES
• Sale to Person Not a Minor. Health & Saf. Code, § 11360.
Simple Possession of Marijuana. Health & Saf. Code, § 11357.
• Possession for Sale of Marijuana. Health & Saf. Code, § 11359.
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 (1991) 233 Cal.App.3d 407, 410–411 [284 Cal.Rptr. 454].)
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