California Criminal Jury Instructions (CALCRIM) (2017)

2392. Employment of Minor to Sell, etc., Marijuana

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2392.Employment of Minor to Sell, etc., Marijuana (Health & Saf.
Code, § 11361(a))
The defendant is charged [in Count ] with (hiring/employing/
using) someone under 18 years of age to (transport/carry/sell/give away/
prepare for sale/peddle) marijuana, a controlled substance [in violation
of Health and Safety Code section 11361(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (hired/employed/used) <insert name
of person hired>;
2. <insert name of person hired> was (hired/employed/
used) to (transport/carry/sell/give away/prepare for sale/peddle)
marijuana, a controlled substance;
3. At that time, the defendant was 18 years of age or older;
4. At that time, <insert name of person hired> was
under 18 years of age;
AND
5. The defendant knew of the substance’s nature or character as a
controlled substance.
[Selling for the purpose of this instruction means exchanging the
marijuana for money, services, or anything of value.]
[A person transports something if he or she carries or moves it from one
location to another, even if the distance is short.]
[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 knew which
specific controlled substance was to be (transported/carried/sold/given
away/prepared for sale/peddled), only that (he/she) was aware that it
was a controlled substance.]
[Under the law, a person becomes one year older as soon as the first
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minute of his or her birthday has begun.]
New January 2006
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
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].)
AUTHORITY
• Elements. Health & Saf. Code, § 11361(a).
Age of Defendant Element of Offense. People v. Montalvo (1971) 4 Cal.3d
328, 332 [93 Cal.Rptr. 581, 482 P.2d 205].
• 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].
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], [b], [g], [h], [3][a] (Matthew
Bender).
CALCRIM No. 2392 CONTROLLED SUBSTANCES
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