California Criminal Jury Instructions (CALCRIM) (2017)

2410. Possession of Controlled Substance Paraphernalia

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(ii) Possession of Paraphernalia
2410.Possession of Controlled Substance Paraphernalia (Health
& Saf. Code, § 11364)
The defendant is charged [in Count ] with possessing an object
that can be used to unlawfully inject or smoke a controlled substance
[in violation of Health and Safety Code section 11364].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant [unlawfully] possessed an object used for
unlawfully injecting or smoking a controlled substance;
2. The defendant knew of the object’s presence;
AND
3. The defendant knew it to be an object used for unlawfully
injecting or smoking a controlled substance.
[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 People allege that the defendant possessed the following items:
<insert each specific item of paraphernalia when multiple
items alleged>. You may not find the defendant guilty unless you all
agree that the People have proved that the defendant possessed at least
one of these items and you all agree on which item (he/she) possessed.]
<Defense: Authorized Possession for Personal Use>
[The defendant did not unlawfully possess [a] hypodermic (needle[s]/
[or] syringe[s]) if (he/she) was legally authorized to possess (it/them).
The defendant was legally authorized to possess (it/them) if:
1. (He/She) possessed the (needle[s]/ [or] syringe[s]) for personal
use;
[AND]
2. (He/She) obtained (it/them) from <insert source
authorized by Health & Safety Code section 11364(c)>.]
The People have the burden of proving beyond a reasonable doubt that
the defendant was not legally authorized to possess the hypodermic
(needle[s]/ [or] syringe[s]). If the People have not met this burden, you
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must find the defendant not guilty of this crime.]
New January 2006; Revised October 2010, April 2011, August 2015
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the crime.
If the prosecution alleges under a single count that the defendant possessed
multiple items, the court has a sua sponte duty to instruct on unanimity. (See
People v. Wolfe (2003) 114 Cal.App.4th 177, 184–185 [7 Cal.Rptr.3d 483]; People
v. Rowland (1999) 75 Cal.App.4th 61, 65 [88 Cal.Rptr.2d 900].) Give the bracketed
paragraph that begins with “The People allege that the defendant possessed,”
inserting the items alleged.
Defenses—Instructional Duty
Section 11364 does not apply to possession of hypodermic needles or syringes for
personal use if acquired from an authorized source. The defendant need only raise
a reasonable doubt about whether his or her possession of these items was lawful.
(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 this defense. (See People v. Fuentes (1990) 224 Cal.App.3d 1041, 1045 [274
Cal.Rptr. 17] [authorized possession of hypodermic is an affirmative defense]);
People v. Mower, at pp. 478–481 [discussing affirmative defenses generally and the
burden of proof].) Give the bracketed word “unlawfully” in element 1 and the
bracketed paragraph on that defense.
AUTHORITY
• Elements Health & Saf. Code, § 11364.
Statute Constitutional People v. Chambers (1989) 209 Cal.App.3d Supp. 1, 4
[257 Cal.Rptr. 289].
• Constructive vs. Actual Possession People v. Barnes (1997) 57 Cal.App.4th
552, 556 [67 Cal.Rptr.2d 162].
• Unanimity People v. Wolfe (2003) 114 Cal.App.4th 177, 184–185 [7
Cal.Rptr.3d 483].
• Authorized Possession Defense Health & Saf. Code, § 11364(c).
Secondary Sources
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare § 155.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.04[2][a] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
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Narcotics and Alcohol Offenses, § 145.01[1][a], [b] (Matthew Bender).
RELATED ISSUES
Marijuana Paraphernalia Excluded
Possession of a device for smoking marijuana, without more, is not a crime. (In re
Johnny O. (2003) 107 Cal.App.4th 888, 897 [132 Cal.Rptr.2d 471].)
CONTROLLED SUBSTANCES CALCRIM No. 2410
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