CALCRIM No. 2306. Possession of Controlled Substance with Intent to Commit Sexual Assault (Health & Saf. Code, §§ 11350.5, 11377.5)

Judicial Council of California Criminal Jury Instructions (2023 edition)

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2306.Possession of Controlled Substance with Intent to Commit
Sexual Assault (Health & Saf. Code, §§ 11350.5, 11377.5)
The defendant is charged [in Count ] with possession of
<insert type of controlled substance from sections
11056(c)(11), (g), 11054(e)(3); or 11057(d)(13) of the Health and Safety
Code>, a controlled substance, with intent to commit
<insert description of alleged target crime or crimes from sections 243.4,
261, 286, 287, or 289 of the Penal Code>, [in violation of Health and
Safety Code section[s] (11350.5[,]/ [and/or] 11377.5)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant 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. When the defendant possessed the controlled substance, (he/she)
intended to use it to commit <insert description of
alleged target crime or crimes from sections 243.4, 261, 286, 287, or
289 of the Penal Code>;
5. The controlled substance was <insert type of
controlled substance>;
6. The controlled substance was in a usable amount.
[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.]
[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.]
New September 2017; Revised March 2022
247
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BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
The court must also give the appropriate instructions on the target sexual offense or
offenses in element 4.
AUTHORITY
• Elements. Health & Saf. Code, §§ 11350.5, 11377.5.
• Prohibited Controlled Substances. Health & Saf. Code, §§ 11054(e)(3),
11056(c)(11) or (g); 11057(d)(13).
• Constructive vs. Actual Possession. People v. Barnes (1997) 57 Cal.App.4th 552,
556 [67 Cal.Rptr.2d 162].
• Knowledge. 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].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 105, 106.
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 1-69.
2307-2314. Reserved for Future Use
CALCRIM No. 2306 CONTROLLED SUBSTANCES
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