CALCRIM No. 2400. Using or Being Under the Influence of Controlled Substance (Health & Saf. Code, § 11550)

Judicial Council of California Criminal Jury Instructions (2020 edition)

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G. USE AND POSSESSION OF PARAPHERNALIA
(i) Use
2400.Using or Being Under the Influence of Controlled Substance
(Health & Saf. Code, § 11550)
The defendant is charged [in Count ] with (using/ [or] being
under the influence of) <insert controlled substance listed in
Health & Saf. Code, § 11550>, a controlled substance [in violation of
Health and Safety Code section 11550].
To prove that the defendant is guilty of this crime, the People must
prove that:
<Alternative A - use of controlled substance>
1. The defendant willfully [and unlawfully] used
<insert controlled substance listed in Health & Saf. Code, § 11550>,
a controlled substance[, a short time before (his/her) arrest](;/.)
[OR]
<Alternative B - under the influence of controlled substance>
(1/2). The defendant was willfully [and unlawfully] under the
influence of <insert controlled substance listed in
Health & Saf. Code, § 11550>, a controlled substance, when (he/
she) was arrested.
Someone commits an act willfully when he or she does it willingly or on
purpose.
[Someone is under the influence of a controlled substance if that person
has taken or used a controlled substance that has appreciably affected
the person’s nervous system, brain, or muscles or has created in the
person a detectable abnormal mental or physical condition.]
<Defense: Prescription>
[The defendant is not guilty of (using/ [or] being under the influence of)
<insert controlled substance listed in Health & Saf. Code,
§ 11550> if (he/she) had a valid prescription for that substance written
by a physician, dentist, podiatrist, [naturopathic doctor] or veterinarian
licensed to practice in California. The People have the burden of proving
beyond a reasonable doubt that the defendant did not have a valid
prescription. If the People have not met this burden, you must find the
defendant not guilty.]
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New January 2006; Revised August 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
A violation of Health and Safety Code section 11550 based on “use” of a controlled
substance requires “ ‘current use’ or ‘use immediately prior to arrest’ . . . .” (People
v. Jones (1987) 189 Cal.App.3d 398, 403-404 [234 Cal.Rptr. 408]; see also People
v. Velasquez (1976) 54 Cal.App.3d 695, 699-700 [126 Cal.Rptr. 656]; People v.
Gutierrez (1977) 72 Cal.App.3d 397, 402 [140 Cal.Rptr. 122].) In People v. Jones,
supra, 189 Cal.App.3d at p. 406, the court found evidence of use within 48 hours
prior to the defendant’s arrest sufficient. If there is an issue in the case over when
the defendant allegedly used the substance, give the bracketed phrase “a short time
before (his/her) arrest” in element 1. (Ibid.) Alternatively, the court may insert a
specific time or time frame in element 1, e.g., “24 to 48 hours prior to (his/her)
arrest.”
A recent amendment to section 11150 includes a naturopathic doctor in the category
of those who may furnish or order certain controlled substances, so that bracketed
option should be included in this instruction if substantial evidence supports it.
If the court instructs the jury on both use and being under the influence, the court
should consider whether a unanimity instruction is required. (See CALCRIM No.
3500, Unanimity.)
Defenses - Instructional Duty
The prescription defense is codified in Health and Safety Code section 11550. The
defendant need only raise a reasonable doubt about whether his or her use of the
drug was lawful because of a valid prescription. (See People v. Mower (2002) 28
Cal.4th 457, 479 [122 Cal.Rptr.2d 326, 49 P.3d 1067].) If there is sufficient
evidence, the court has a sua sponte duty to instruct on the defense. Give the
bracketed “and unlawfully” in the elements and the bracketed paragraph on the
defense.
AUTHORITY
• Elements. Health & Saf. Code, § 11550.
• Under the Influence. People v. Culberson (1956) 140 Cal.App.2d Supp. 959,
960-961 [295 P.2d 598]; see also People v. Canty (2004) 32 Cal.4th 1266, 1278
[14 Cal.Rptr.3d 1, 90 P.3d 1168]; People v. Enriquez (1996) 42 Cal.App.4th 661,
665 [49 Cal.Rptr.2d 710].
• Under the Influence and Use Distinguished. People v. Gutierrez (1977) 72
Cal.App.3d 397, 402 [140 Cal.Rptr. 122].
• Willfulness Element of Offense. People v. Little (2004) 115 Cal.App.4th 766,
775 [9 Cal.Rptr.3d 446].
CALCRIM No. 2400 CONTROLLED SUBSTANCES
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• Willfully Defined. Pen. Code, § 7(1); People v. Lara (1996) 44 Cal.App.4th
102, 107 [51 Cal.Rptr.2d 402].
• Specific Controlled Substance Must Be Alleged. Sallas v. Municipal Court
(1978) 86 Cal.App.3d 737, 743 [150 Cal.Rptr. 543].
• Requires Current Use. People v. Jones (1987) 189 Cal.App.3d 398, 403-404
[234 Cal.Rptr. 408]; see also People v. Velasquez (1976) 54 Cal.App.3d 695,
699-700 [126 Cal.Rptr. 656]; People v. Gutierrez (1977) 72 Cal.App.3d 397, 402
[140 Cal.Rptr. 122].
• Statute Constitutional. Bosco v. Justice Court (1978) 77 Cal.App.3d 179,
191-192 [143 Cal.Rptr. 468].
• Prescription Defense. Health & Saf. Code, § 11550.
• Prescription Defined. Health & Saf. Code, §§ 11027, 11164, 11164.5.
• Persons Authorized to Write Prescriptions. Health & Saf. Code, § 11150.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 93.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.01[1][a], [k], [l], [2][b] (Matthew Bender).
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