Section 2380 | CALCRIM (Jury Instructions)

of
<insert type of controlled substance>. An analog of a
controlled substance:
[1. Has a chemical structure substantially similar to the structure of
a controlled substance(./;)]
[OR]
[(2/1). 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, September 2017
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,
CALCRIM No. 2380
CONTROLLED SUBSTANCES
302

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
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 Offer