CALCRIM No. 2338. Possession of Isomers or Precursors With Intent to Manufacture Controlled Substance (Health & Saf. Code, § 11383.5(c)-(f))

Judicial Council of California Criminal Jury Instructions (2020 edition)

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2338.Possession of Isomers or Precursors With Intent to
Manufacture Controlled Substance (Health & Saf. Code,
§ 11383.5(c)-(f))
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)>]) [in violation
of Health and Safety Code section 11383.5].
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, § 11383.5(c), (d), (e), or
(f)>;
AND
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.]
New January 2006; Revised June 2007
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
Subdivisions (c), (d), (e), and (f) of Health and Safety Code section 11383.5 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.
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AUTHORITY
• Elements. Health & Saf. Code, § 11383.5(c)-(f).
• 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].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 134.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.01[1][a], [d], [3][d] (Matthew Bender).
2339-2349. Reserved for Future Use
CONTROLLED SUBSTANCES CALCRIM No. 2338
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