Section 2384 | CALCRIM (Jury Instructions)

To decide whether the defendant intended that
<insert name
of person solicited> would commit the crime of
<insert
description of Health and Safety Code violation alleged>, please refer to the
separate instructions that I (will give/have given) you on that crime.
Someone commits an act willfully when he or she does it willingly or on
purpose.
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
<Defense: Good Faith Belief Over 18>
[The defendant is not guilty of this crime if (he/she) reasonably and
actually believed that
<insert name of person solicited> was
18 years of age or older. The People have the burden of proving beyond
a reasonable doubt that the defendant did not reasonably and actually
believe that
<insert name of person solicited> was at least 18
years of age. If the People have not met this burden, you must find the
defendant not guilty of this crime.]
New January 2006; Revised February 2014, September 2017, September 2018
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
Where indicated in the instruction, insert a description of the Health and Safety
Code violation allegedly solicited. For example, “the crime of possession for sale of
cocaine,” or “the crime of sale of cannabis.”
If the defendant is charged with violating Health and Safety Code section 11354(a),
in element 3, 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].)
Defenses—Instructional Duty
The court has a sua sponte duty to give the final bracketed paragraph if there is
substantial evidence supporting the defense that the defendant had a reasonable and
good faith belief that the person was over 18 years of age. (People v. Goldstein
(1982) 130 Cal.App.3d 1024, 1036–1037 [182 Cal.Rptr. 207].)
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].
CONTROLLED SUBSTANCES
CALCRIM No. 2384
315

•
Good Faith Belief Minor Over 18 Defense to Inducing or Soliciting. People v.
Goldstein (1982) 130 Cal.App.3d 1024, 1036–1037 [182 Cal.Rptr. 207].
•
Definition of Analog Controlled Substance. Health & Saf. Code, § 11401; 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
7 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 124, 125.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, § 73.06[1] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defens