CALCRIM No. 2321. Forged Prescription for Narcotic: With Possession of Drug (Health & Saf. Code, § 11368)

Judicial Council of California Criminal Jury Instructions (2020 edition)

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2321.Forged Prescription for Narcotic: With Possession of Drug
(Health & Saf. Code, § 11368)
The defendant is charged [in Count ]with (obtaining/possessing) a
narcotic drug [obtained] with (a/an) (forged[,]/ fictitious[,]/ [or] altered)
prescription [in violation of Health and Safety Code section 11368].
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;
AND
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.
Ausable 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.]
[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.]
New January 2006; Revised October 2010
251
BENCH NOTES
Instructional Duty
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.
AUTHORITY
• Elements. Health & Saf. Code, § 11368; People v. Beesly (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].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 152, 154.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.01[1][a]-[d], [2][b], [c] (Matthew Bender).
2322-2329. Reserved for Future Use
CALCRIM No. 2321 CONTROLLED SUBSTANCES
252

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