CALCRIM No. 2304. Simple Possession of Controlled Substance (Health & Saf. Code, §§ 11350, 11377)

Judicial Council of California Criminal Jury Instructions (2020 edition)

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2304.Simple Possession of Controlled Substance (Health & Saf.
Code, §§ 11350, 11377)
The defendant is charged [in Count ] with possessing
<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;
<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>;
AND
5. 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]
[(2/1). 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.]]
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.
238
[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.]
<Defense: Prescription>
[The defendant is not guilty of possessing <insert type of
controlled substance> if (he/she) had a valid, written prescription for that
substance from a physician, dentist, podiatrist, [naturopathic doctor], or
veterinarian licensed to practice in California. The People have the
burden of proving beyond a reasonable doubt that the defendant did not
have a valid prescription. If the People have not met this burden, you
must find the defendant not guilty of possessing a controlled substance.]
New January 2006; Revised August 2006, October 2010, February 2014, August
2015, September 2017
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
When the People allege the defendant has a prior conviction for an offense listed in
Penal Code section 667(e)(2)(C)(iv) or for an offense requiring registration pursuant
to subdivision (c) of section 290, give CALCRIM No. 3100, Prior Conviction:
Nonbifurcated Trial, or CALCRIM No. 3101, Prior Conviction: Bifurcated Trial.
Defenses - Instructional Duty
The prescription defense is codified in Health and Safety Code sections 11350 and
11377. It is not available as a defense to possession of all controlled substances. The
defendant need only raise a reasonable doubt about whether his or her possession of
the drug was lawful because of a valid prescription. (See People v. Mower (2002)
28 Cal.4th 457, 479 [122 Cal.Rptr.2d 326, 49 P.3d 1067].) If there is sufficient
evidence, the court has a sua sponte duty to give the bracketed paragraph on the
defense.
A recent amendment to section 11150 includes a naturopathic doctor in the category
of those who may furnish or order certain controlled substances, so that bracketed
option should be included in this instruction if substantial evidence supports it.
AUTHORITY
• Elements. Health & Saf. Code, §§ 11350, 11377; People v. Palaschak (1995) 9
CONTROLLED SUBSTANCES CALCRIM No. 2304
239
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. 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].
• Prescription. Health & Saf. Code, §§ 11027, 11164, 11164.5.
• Persons Authorized to Write Prescriptions. Health & Saf. Code, § 11150.
• 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.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare §§ 97-114.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.01[1][a]-[d], [2][b] (Matthew Bender).
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