2337. Possession With Intent to Manufacture Methamphetamine
The defendant is charged [in Count ______] with possessing substances with the intent to manufacture methamphetamine [or <insert analog from Health & Saf. Code, § 11055(d)>].
To prove that the defendant is guilty of this crime, the People must prove that:
<Alternative 1A—ephedrine or pseudoephedrine>
[1. The defendant possessed [a substance containing] (ephedrine/ [or] pseudoephedrine) [or any salts, isomers, or salts of isomers of (ephedrine/ [or] pseudoephedrine)];]
<Alternative 1B—other listed substances>
[1. The defendant possessed both <insert substances from Health & Saf. Code, § 11383(c)> at the same time, either as individual substances or combined together in one substance;]
2. When the defendant possessed (that/those) substance[s], (he/she) intended to use (it/them) to manufacture methamphetamine [or <insert analog from Health & Saf. Code, § 11055(d)>].
[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.]
The court has a sua sponte duty to give this instruction defining the elements of the crime.
If the defendant is charged with possessing isomers or precursor chemicals under Health and Safety Code section 11383(e), (f), (g), or (h), give
CALCRIM No. 2338, Possession of Isomers or Precursors With Intent to Manufacture Controlled Substance, instead of this instruction.
Elements. Health & Saf. Code, § 11383(c).
Constructive vs. Actual Possession. People v. Barnes (1997) 57 Cal.App.4th 552, 556 [67 Cal.Rptr.2d 162].
Specific Intent Required. People v. Jenkins (1979) 91 Cal.App.3d 579, 583 [154 Cal.Rptr. 309].
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Public Peace and Welfare, § 114.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145, Narcotics and Alcohol Offenses, § 145.01[a], [d], [d] (Matthew Bender).
(New January 2006)