CALCRIM No. 2303. Possession of Controlled Substance While Armed With Firearm (Health & Saf. Code, § 11370.1)

Judicial Council of California Criminal Jury Instructions (2023 edition)

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2303.Possession of Controlled Substance While Armed With
Firearm (Health & Saf. Code, § 11370.1)
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 [in
violation of <insert appropriate code section[s]>].
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;
<If the controlled substance is not listed in the schedules set forth in
sections 11054 through 11058 of the Health and Safety Code, give
paragraph 4B and the definition of analog substance below instead of
paragraph 4A.>
4A. The controlled substance was <insert type of
controlled substance>;
4B. The controlled substance was an analog of <insert
type of controlled substance>;
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.
[In order to prove that the defendant is guilty of this crime, the People
must prove that <insert name of analog drug> is an analog
of <insert type of controlled substance>. An analog of a
controlled substance:
[1. Has a chemical structure substantially similar to the structure of
a controlled substance(./;)]
[OR]
[(2/1). Has, is represented as having, or is intended to have a stimulant,
depressant, or hallucinogenic effect on the central nervous system
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substantially similar to or greater than the effect of a controlled
substance.]]
Knowledge that an available firearm is loaded and operable is not
required.
Afirearm 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.
Ausable 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.]
[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.]
New January 2006; Revised August 2006, October 2010, August 2013, February
2014, September 2017
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].
CALCRIM No. 2303 CONTROLLED SUBSTANCES
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• Knowledge of Presence of Firearm. People v. Singh (2004) 119 Cal.App.4th 905,
912-913 [14 Cal.Rptr.3d 769].
• Knowledge That Firearm is Loaded or Operable Not Required. People v. Heath
(2005) 134 Cal.App.4th 490, 498 [36 Cal.Rptr.3d 66].
• 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.
LESSER INCLUDED OFFENSES
• Simple Possession of a Controlled Substance Not a Lesser Included Offense.
People v. Sosa (2012) 210 Cal.App.4th 946, 949-950 [148 Cal.Rptr.3d 826];
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].)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 100.
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).
CONTROLLED SUBSTANCES CALCRIM No. 2303
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