2302. Possession for Sale of Controlled Substance
The defendant is charged [in Count ______] with possession for sale of <insert type of controlled substance>, a controlled substance.
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. When the defendant possessed the controlled substance, (he/she) intended to sell it;
5. The controlled substance was <insert type of controlled substance>;
6. The controlled substance was in a usable amount.
Selling for the purpose of this instruction means exchanging <insert type of controlled substance> for money, services, or anything of value.
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.]
The court has a sua sponte duty to give this instruction defining the elements of the crime.
Elements. Health & Saf. Code, §§ 11351, 11351.5, 11378, 11378.5.
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].
Selling. People v. Lazenby (1992) 6 Cal.App.4th 1842, 1845 [8 Cal.Rptr.2d 541].
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].
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Public Peace and Welfare, §§ 81-93.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145, Narcotics and Alcohol Offenses, § 145.01[a]-[c], [e] (Matthew Bender).
Lesser Included Offenses
Simple Possession of a Controlled Substance. People v. Saldana (1984) 157 Cal.App.3d 443, 453-458 [204 Cal.Rptr. 465].
(New January 2006)