Section 2390 | CALCRIM (Jury Instructions)

<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
318

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. Lo