CALCRIM No. 2390. Sale, Furnishing, etc., of Cannabis to Minor (Health & Saf. Code, § 11361)

Judicial Council of California Criminal Jury Instructions (2020 edition)

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(ii) Marijuana
2390.Sale, Furnishing, etc., of Cannabis to Minor (Health & Saf.
Code, § 11361)
The defendant is charged [in Count ] with
(selling/furnishing/administering/giving away) cannabis, 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) cannabis, 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 cannabis was in a usable amount.]
[Selling for the purpose of this instruction means exchanging the
cannabis 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.]
[Cannabis 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.]]
315
<If applicable, give the definition of industrial hemp: Health & Saf. Code,
§ 11018.5>
[Cannabis does not include industrial hemp. Industrial hemp means a
fiber or oilseed crop, or both, that only contain types of the plant
Cannabis sativa L. with no more than three-tenths of 1 percent
tetrahydrocannabinol from the dried flowering tops, whether growing or
not. It may include the seeds of the plant; the resin extracted from any
part of the plant; and every compound, manufacture, salt, derivative,
mixture, or preparation of the plant, its seeds or resin produced from the
seeds.]
[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, September 2018
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 cannabis 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 “cannabis,” 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 cannabis].)
CALCRIM No. 2390 CONTROLLED SUBSTANCES
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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, § 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].
• “Cannabis” Defined. Health & Saf. Code, § 11018.
LESSER INCLUDED OFFENSES
• Sale to Person Not a Minor. Health & Saf. Code, § 11360.
• Simple Possession of Cannabis. Health & Saf. Code, § 11357.
• Possession for Sale of Cannabis. 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].)
SECONDARY SOURCES
7 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 124-126.
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,
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317
Narcotics and Alcohol Offenses, § 145.01[1][a]-[c], [h], [i], [3][a] (Matthew
Bender).
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