Criminal Law

2303. Possession of Controlled Substance While Armed With Firearm

The defendant is charged [in Count ______] with possessing <insert type of controlled substance specified in Health & Saf. Code, 11370.1>, a controlled substance, while armed with a firearm.

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant [unlawfully] possessed a controlled substance;

2. The defendant knew of its presence;

3. The defendant knew of the substance's nature or character as a controlled substance;

4. The controlled substance was <insert type of controlled substance specified in Health & Saf. Code, 11370.1>;

5. The controlled substance was in a usable amount;

6. While possessing that controlled substance, the defendant had a loaded, operable firearm available for immediate offensive or defensive use;

AND

7. The defendant knew that (he/she) had the firearm available for immediate offensive or defensive use.

A firearm is any device designed to be used as a weapon, from which a projectile is expelled or discharged through a barrel by the force of an explosion or other form of combustion.

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) possessed, only that (he/she) was aware of the substance's presence and that it was a controlled substance.]

[Two or more people may possess something at the same time.]

[A person does not have to actually hold or touch something to possess it. It is enough if the person has (control over it/ [or] the right to control it), either personally or through another person.]

[Agreeing to buy a controlled substance does not, by itself, mean that a person has control over that substance.]

Bench Notes

Instructional Duty

The court has a sua sponte duty to give this instruction defining the elements of the crime.

Authority

Elements. Health & Saf. Code, 11370.1; People v. Palaschak (1995) 9 Cal.4th 1236, 1242 [40 Cal.Rptr.2d 722, 893 P.2d 717].

Constructive vs. Actual Possession. People v. Barnes (1997) 57 Cal.App.4th 552, 556 [67 Cal.Rptr.2d 162].

Knowledge of Controlled Substance. People v. Horn (1960) 187 Cal.App.2d 68, 74-75 [9 Cal.Rptr. 578].

Usable Amount. People v. Rubacalba (1993) 6 Cal.4th 62, 65-67 [23 Cal.Rptr.2d 628, 859 P.2d 708]; People v. Piper (1971) 19 Cal.App.3d 248, 250 [96 Cal.Rptr. 643].

Loaded Firearm. People v. Clark (1996) 45 Cal.App.4th 1147, 1153 [53 Cal.Rptr.2d 99].

Knowledge of Presence of Firearm. People v. Singh (2004) 119 Cal.App.4th 905, 912-913 [14 Cal.Rptr.3d 769].

Secondary Sources

2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Public Peace and Welfare, 80.

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes Against Order, 144.01[1][f]; Ch. 145, Narcotics and Alcohol Offenses, 145.01[1][a]-[d], [3][b] (Matthew Bender).

Lesser Included Offenses

Simple Possession of a Controlled Substance. Health & Saf. Code, 11350, 11377.

See also Firearm Possession instructions, CALCRIM Nos. 2510 to 2530.

Related Issues

Loaded Firearm

"Under the commonly understood meaning of the term 'loaded,' a firearm is 'loaded' when a shell or cartridge has been placed into a position from which it can be fired; the shotgun is not 'loaded' if the shell or cartridge is stored elsewhere and not yet placed in a firing position." (People v. Clark (1996) 45 Cal.App.4th 1147, 1153 [53 Cal.Rptr.2d 99].)

(New January 2006)