2338. Possession of Isomers or Precursors With Intent to Manufacture Controlled Substance
The defendant is charged [in Count ______] with possessing substances with the intent to manufacture (methamphetamine [or <insert analog of methamphetamine from Health & Saf. Code, § 11055(d)>]/N-ethylamphetamine/phencyclidine (PCP) [or <insert analog of PCP from Health & Saf. Code, § 11054(d) or § 11055(e)>]).
To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant possessed <insert name or description of substance[s] from Health & Saf. Code, § 11383(e), (f), (g), or (h)>;
2. When the defendant possessed (that/those) substance[s], (he/she) intended to use (it/them) to manufacture (methamphetamine [or <insert analog of methamphetamine from Health & Saf. Code, § 11055(d)>]/N-ethylamphetamine/phencyclidine (PCP) [or <insert analog of PCP from Health & Saf. Code, § 11054(d) or § 11055(e)>]).
[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.
Effective January 1, 2004, subdivisions (e), (f), (g), and (h) of Health and Safety Code section 11383 make it a felony to possess any of the following: isomers of other substances listed in that section, precursor chemicals sufficient for manufacturing listed substances, chemicals sufficient to manufacture hydriodic acid or another reducing agent, and compounds or mixtures containing listed substances. In element 1, the court should insert the name or description of the specific substances the defendant is charged with possessing.
Elements. Health & Saf. Code, § 11383(e), (f), (g) & (h).
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)