2410. Possession of Controlled Substance Paraphernalia
The defendant is charged [in Count ______] with possessing an object that can be used to unlawfully inject or consume a controlled substance.
To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant [unlawfully] possessed an object that can be used to unlawfully inject or consume a controlled substance;
2. The defendant knew of the object's presence;
3. The defendant knew that the object could be used to unlawfully inject or consume 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;
2. (he/she) obtained (it/them) from an authorized source(;/.) [AND 3. (he/she) possessed no more than 10 (needles/ [or] syringes).]
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 must find the defendant not guilty of this crime.]
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.
In 2004, the Legislature created the Disease Prevention Demonstration Project. (Health & Saf. Code, § 121285.) The purpose of this project is to evaluate "the long-term desirability of allowing licensed pharmacists to furnish or sell nonprescription hypodermic needles or syringes to prevent the spread of blood-borne pathogens, including HIV and hepatitis C." (Health & Saf. Code, § 121285(a).) In a city or county that has authorized participation in the project, a pharmacist may provide up to 10 hypodermic needles and syringes to an individual for personal use. (Bus. & Prof. Code, § 4145(a)(2).) Similarly, in a city or county that has authorized participation in the project, Health and Safety Code section 11364(a) "shall not apply to the possession solely for personal use of 10 or fewer hypodermic needles or syringes if acquired from an authorized source." (Health & Saf. Code, § 11364(c).) 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, ibid. 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.
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].
Disease Prevention Demonstration Project. Health & Saf. Code, § 121285; Bus. & Prof. Code, § 4145(a)(2).
Possession Permitted Under Project. Health & Saf. Code, § 11364(c).
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Public Peace and Welfare, § 116.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85, Submission to Jury and Verdict, § 85.04[a] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145, Narcotics and Alcohol Offenses, § 145.01[a], [b] (Matthew Bender).
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].)
(New January 2006)