Effective January 1, 2014, Health and Safety Code section 11379 was amended to limit the meaning of “transports” under the statute to transportation “for sale.” The jury instruction for section 11379 offenses was modified to reflect the 2014 amendment to the statute by inserting the words “for sale” after the word “transported” — “To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant (… transported for sale …) a controlled substance; … .” (CC 2300 [Aug. 2014 update].) The term “transports” is defined in the form instruction, as is the word “selling,” but there is no separate gloss on the phrase “for sale.” (CC 2300.)
However this amendment fails to adequately instruct the jury on the elements of the charge because it fails to “explicitly and separately explain the ‘for sale’ aspect of the offense as a separate element….” (People v. Lua (2017) 10 Cal. App. 5th 1004, 1013.) Moreover, CC 2300 does not conform to the instructions for other offenses with an identical “for sale” element, e.g. — “To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant [unlawfully] possessed a controlled substance; [¶] … .[¶] 4. When the defendant possessed the controlled substance, (he/she) intended (to sell it/ [or] that someone else sell it) … .” (CC. 2302, CC 2352; see also CC 2381, CC 2391 [regarding sale of controlled substances to minors].)
In sum, “it is at best questionable whether, standing alone, the instruction adequately explains the specific intent element of the offense… [U]nless and until the standard instruction is amended, trial courts should consider modifying the instruction to be more explicit regarding the required intent.” (Lua, supra, at 1016.)
Thus, instead of simply requiring “transportation for sale” an additional element should be added to the enumerated elements of CC 2300 such as the following:
Sample Instruction 1:
When the defendant transported the controlled substance (he/she) intended (to sell it/ [or] that someone else sell it).
Sample Instruction 2 [See People v. Miranda (2008) 161 Cal. App. 4th 98, 109-10]:
When the defendant transported the controlled substance, he intended to sell it.
