2321. Forged Prescription for Narcotic: With Possession of Drug
The defendant is charged [in Count ______] with (obtaining/ possessing) a narcotic drug [obtained] with (a/an) (forged[,]/ fictitious[,]/ [or] altered) prescription.
To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant (obtained/possessed) a narcotic drug;
2. The defendant knew of its presence;
3. The defendant knew of the substance's nature or character as a narcotic drug;
4. The narcotic drug was in a usable amount;
5. The narcotic drug was obtained by using (a/an) (forged[,]/ fictitious[,]/ [or] altered) prescription;
6. The defendant knew that the narcotic was obtained using (a/an) (forged[,]/ fictitious[,]/ [or] altered) prescription. <insert name or description of narcotic from Health & Saf. Code, § 11019> is a narcotic drug.
A usable amount is a quantity that is enough to be used by someone as a narcotic drug. 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 narcotic drug (he/she) possessed, only that (he/she) was aware of the substance's presence and that it was a narcotic drug.]
[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 narcotic drug 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.
Use this instruction when the prosecution alleges that the defendant obtained or possessed the narcotic by using a forged prescription. When the prosecution alleges that the defendant forged or attempted to use a forged prescription without obtaining the narcotic, use CALCRIM No. 2320, Forged Prescription for Narcotic.
Elements. Health & Saf. Code, § 11368; People v. Beesley (1931) 119 Cal.App. 82, 86 [6 P.2d 114] [intent to defraud not an element]; People v. Katz (1962) 207 Cal.App.2d 739, 745 [24 Cal.Rptr. 644].
Narcotic Drug. Health & Saf. Code, § 11019.
Prescription. Health & Saf. Code, §§ 11027, 11164, 11164.5.
Persons Authorized to Write Prescriptions. Health & Saf. Code, § 11150.
Forgery of Prescription by Telephone. People v. Jack (1965) 233 Cal.App.2d 446, 455 [43 Cal.Rptr. 566].
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Public Peace and Welfare, §§ 119-120.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145, Narcotics and Alcohol Offenses, § 145.01[a]-[d], [b], [c] (Matthew Bender).
(New January 2006)