SERIES 2300 CONTROLLED SUBSTANCES
F 2351 Offering To Sell, Furnish, Etc., Marijuana (HS 11360)
TABLE OF CONTENTS
F 2351.1 Titles And Identification Of Parties
F 2351.1 Inst 1 Offering To Sell, Furnish, Etc., Marijuana—Title
F 2351.1 Inst 2 Identification Of Prosecution And Defendant
F 2351.2 Offering To Sell, Furnish, Etc., Marijuana—Tailoring To Facts: Persons, Places, Things And Theories
F 2351.2 Inst 1 (a-c) Include Definition In Elements; Tailor To Facts
F 2351.3 Offering To Sell, Furnish, Etc., Marijuana—Language That Is Argumentative, Confusing, Etc.
F 2351.3 Inst 1 Deletion Of Argumentative Language
F 2351.4 Offering To Sell, Furnish, Etc., Marijuana—Burden Of Proof Issues
F 2351.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 2351.5 Offering To Sell, Furnish, Etc., Marijuana—Elements And Definitions
F 2351.5 Inst 1 Causation Instructions Required For Administration Theory
F 2351.5 Inst 2 Knowing Exercise Of A Right To Control The Substance Is An Element Of The Charge
F 2351.5 Inst 3 Personal Use
F 2351.6 Offering To Sell, Furnish, Etc., Marijuana—Defense Theories
F 2351.6 Inst 1 Usable Amount: Pinpoint Instruction
F 2351.6 Inst 2 Sale Or Transportation Of Drugs: Knowledge Requirement
F 2351.6 Inst 3 (a-c) Juror Consideration Of Fact That Defendant Did Not Possess The Marijuana
F 2351.6 Inst 4 Offer To Sell Controlled Substance: Knowledge Requirement
F 2351.7 Offering To Sell, Furnish, Etc., Marijuana—Preliminary Fact Issues [Reserved]
F 2351.8 Offering To Sell, Furnish, Etc., Marijuana—Unanimity/Duplicity/Multiplicity [Reserved]
F 2351.9 Offering To Sell, Furnish, Etc., Marijuana—Lesser Offense Issues [Reserved]
F 2351 Notes
F 2351 Note 1 Offering To Sell, Furnish, Etc., Marijuana—CALCRIM Cross-References And Research Notes
F 2351 Note 2 Selling Or Offering Drugs: Possession Is Not LIO
F 2351 Note 3 Sale Of Drugs: Defendant Permitted To Comment on Lack of Fingerprint Evidence
F 2351 Note 4 Importation Of Controlled Substance From Foreign Country: Federal Preemption Precludes Prosecution In State Court
F 2351 Note 5 Possession For Sale: Expert Testimony Regarding Structure Of Drug Trafficking Organizations When No Conspiracy Charged
F 2351 Note 6 Offer To Sell As LIO Of Selling
F 2351 Note 7 Offer To Sell Controlled Substance: Definition of Administer.
F 2351 Note 8 Sale Of Drugs: Entrapment
Return to Series 2300 Table of Contents.
F 2351.1 Titles And Identification Of Parties
F 2351.1 Inst 1 Offering To Sell, Furnish, Etc., Marijuana—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 2351.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 2351.2Offering To Sell, Furnish, Etc., Marijuana—Tailoring To Facts: Persons, Places, Things And Theories
F 2351.2 Inst 1 (a-c) Include Definition In Elements; Tailor To Facts
Alternative a:
*Replace 2301, Element 1 [Selling], as follows:
1. The defendant offered to exchange _______________ <name of controlled substance> for (money/ _______________ <specify service>/_______________ <specify other thing of value>);
[Source: Adapted from CC 2301, paragraph 3.]
Alternative b-1 [Administered Directly]:
1. The defendant offered to apply _______________ <name of controlled substance> directly to the body of _______________ <name of person to whom controlled substance was administered> by (injection/_______________ <specify other means>;
[Source: Adapted from CC 2351, paragraph 4.]
Alternative b-2 [Administered By Causing Other Person To Consume The Controlled Substance]:
1. The defendant offered to cause* _______________ <name of person to whom controlled substance was administered> to inhale, ingest or otherwise consume _______________ <name of controlled substance>;
*Note: Causation instructions may be appropriate (see FORECITE F 1501.5 Inst 2).
[Source: Adapted from CC 2351, paragraph 4.]
Alternative c [Undefined Theories]:
1. The defendant offered to (furnish/give away/import into California) _______________ <name of controlled substance>.
[Delete paragraphs 3, 4 & 5.]
Points and Authorities
See FORECITE F 2300.2 Inst 1.
F 2351.3 Offering To Sell, Furnish, Etc., Marijuana—Language That Is Argumentative, Confusing, Etc.
F 2351.3 Inst 1 Deletion Of Argumentative Language
*Modify CC 2301, paragraph 6, as follows [deleted language is stricken]:
[The People do not need to prove that the defendant actually possessed the marijuana.]
Points and Authorities
See FORECITE F 416.3 Inst 4.
STRATEGY NOTE AND CAVEAT—Objection to specific instruction on matters which the prosecution does not have to prove may open the door, in the judge’s view, to prosecutorial objection to specific evidence instructions on matters which are not alone sufficient to prove guilt. (See listing of such instructions at FORECITE PG XI(D)(2).) Although the considerations should be different due to the presumptions of innocence (see e.g., FORECITE F 100.1 Inst 1), the judge may not see it this way. In this light, an alternative approach could be a request that the instruction be balanced and clarified to assure the jurors do consider the specified matter in determining whether the prosecution has proven all essential facts and elements of the charged offense. (See FORECITE F 2351.6 Inst 3.)
Additionally, if the judge rejects a defense request to delete or balance argumentative language that favors the prosecution, this may provide a basis for requesting argumentative language favoring the defendant in another instruction. [See generally FORECITE F 416.3 Inst 4.]
F 2351.4 Offering To Sell, Furnish, Etc., Marijuana—Burden Of Proof Issues
F 2351.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 2351.5 Offering To Sell, Furnish, Etc., Marijuana—Elements And Definitions
F 2351.5 Inst 1 Causation Instructions Required For Administration Theory
See FORECITE F 2300.5 Inst 1.
F 2351.5 Inst 2 Knowing Exercise Of A Right To Control The Substance Is An Element Of The Charge
See FORECITE F 2300.5 Inst 3.
F 2351.5 Inst 3 Personal Use
See FORECITE F 2300.5 Inst 4.
F 2351.6 Offering To Sell, Furnish, Etc., Marijuana—Defense Theories
F 2351.6 Inst 1 Usable Amount: Pinpoint Instruction
See FORECITE F 2300.6 Inst 2.
F 2351.6 Inst 2 Sale Or Transportation Of Drugs: Knowledge Requirement
See FORECITE F 2300.6 Inst 3.
F 2351.6 Inst 3 (a-c) Juror Consideration Of Fact That Defendant Did Not Possess The Marijuana
*Add after CC 2351, last paragraph:
Alternative a [fact not disputed]:
However, the fact that the defendant did not actually possess the marijuana is a circumstance to consider in evaluating whether the prosecution has proven [all the elements of the alleged _______________] [_______________<insert specific element to which the evidence relates>].
Alternative b [fact disputed]:
However, whether or not the defendant actually possessed the marijuana is a circumstance to consider in evaluating whether the prosecution has proven [all the elements of the alleged _______________] [_____________ <insert specific element to which the evidence relates>].
Alternative c [fact disputed]:
*Add to paragraph 4, as follows:
However, in attempting to determine whether or not offered to (sell/furnish/administer/import into California), consider [the fact that the defendant did not] [whether or not the defendant actually possessed the marijuana].
Points and Authorities
See FORECITE F 416.3 Inst 7.
F 2351.6 Inst 4 Offer To Sell Controlled Substance: Knowledge Requirement
*Add the following element to CC 2351:
3. Such person had knowledge of its nature as a controlled substance.
Points and Authorities
See FORECITE F 2301.6 Inst 3.
F 2351.7 Offering To Sell, Furnish, Etc., Marijuana—Preliminary Fact Issues[Reserved]
F 2351.8 Offering To Sell, Furnish, Etc., Marijuana—Unanimity/Duplicity/Multiplicity[Reserved]
F 2351.9 Offering To Sell, Furnish, Etc., Marijuana—Lesser Offense Issues[Reserved]
F 2351 NOTES
F 2351 Note 1Offering To Sell, Furnish, Etc., Marijuana—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
See FORECITE F 2300 Notes
CALCRIM 2350 [Sale, Furnishing, Etc., of Marijuana]
CALCRIM 2352 [Possession for Sale of Marijuana]
Research Notes:
See CLARAWEB Forum, Controlled Substances—Series 2300.
F 2351 Note 2Selling Or Offering Drugs: Possession Is Not LIO
See FORECITE F 2300 Note 4.
F 2351 Note 3Sale Of Drugs: Defendant Permitted To Comment on Lack of Fingerprint Evidence
See FORECITE F 2300 Note 5.
F 2351 Note 4 Importation Of Controlled Substance From Foreign Country: Federal Preemption Precludes Prosecution In State Court
See FORECITE F 2300 Note 10.
F 2351 Note 5 Possession For Sale: Expert Testimony Regarding Structure Of Drug Trafficking Organizations When No Conspiracy Charged
See FORECITE F 2300 Note 12.
F 2351 Note 6 Offer To Sell As LIO Of Selling
See FORECITE F 2300 Note 13.
F 2351 Note 7 Offer To Sell Controlled Substance: Definition of Administer.
See FORECITE F 2300 Note 6.
CALJIC NOTE: See FORECITE F 12.03 n1.
F 2351 Note 8Sale Of Drugs: Entrapment
See FORECITE F 2300 Note 3.
