California Criminal Jury Instructions (CALCRIM) (2017)

2302. Possession for Sale of Controlled Substance

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2302.Possession for Sale of Controlled Substance (Health & Saf.
Code, §§ 11351, 11351.5, 11378, 11378.5)
The defendant is charged [in Count ] with possession for sale of
<insert type of controlled substance>, a controlled substance
[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;
4. When the defendant possessed the controlled substance, (he/she)
intended (to sell it/ [or] that someone else sell it);
<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 5B and the definition of analog substance below instead of
paragraph 5A.>
5A. The controlled substance was <insert type of
controlled substance>;
5B. The controlled substance was an analog of <insert
type of controlled substance>;
AND
6. The controlled substance was in a usable amount.
[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. Has, is represented as having, or is intended to have a stimulant,
depressant, or hallucinogenic effect on the central nervous system
substantially similar to or greater than the effect of a controlled
substance.]
Selling for the purpose of this instruction means exchanging
<insert type of controlled substance> for money, services, or
anything of value.
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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 October 2010, February 2014, February 2016
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, §§ 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].
• This Instruction Is Correct. People v. Montero (2007) 155 Cal.App.4th 1170,
1177 [66 Cal.Rptr.3d 668].
• Definition of Analog Controlled Substance. 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.
• Specific Intent to Sell Personally or That Another Will Sell Required. People
v. Parra (1999) 70 Cal. App. 4th 222, 226 [70 Cal.App.4th 222] and People v.
CONTROLLED SUBSTANCES CALCRIM No. 2302
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Consuegra (1994) 26 Cal. App. 4th 1726, 1732, fn. 4 [32 Cal.Rptr.2d 288].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 87–88, 101.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.01[1][a]–[c], [e], [h] (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].
• Possession of cocaine for sale is not necessarily included offense of selling
cocaine base. People v. Murphy (2005) 134 Cal.App.4th 1504, 1508 [36
Cal.Rptr.3d 872]).
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