California Criminal Jury Instructions (CALCRIM) (2017)

3200. Controlled Substance: Quantity

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G. CONTROLLED SUBSTANCES
3200.Controlled Substance: Quantity (Pen. Code,
§§ 1203.07(a)(1), (2) & (4); Health & Saf. Code, §§ 11352.5,
11370.4)
If you find the defendant guilty of the crime[s] charged in Count[s]
[,] [or of attempting to commit (that/those) crime[s]][ or the
lesser crime[s] of <insert lesser offense[s]>], you must then
decide whether[, for each crime,] the People have proved the additional
allegation that the crime involved [more than] a specified amount [or
more] of the controlled substance. [You must decide whether the People
have proved this allegation for each crime and return a separate finding
for each crime.]
To prove this allegation, the People must prove that:
[1.] The defendant <insert conduct alleged, e.g., sold or
conspired to sell> [more than] <insert quantity
alleged> by (weight/volume) [or more] of a substance containing
<insert controlled substance>(./;)
<Give element 2 if enhancement alleged in conspiracy count.>
[AND
2. The defendant was substantially involved in the planning,
direction, execution, or financing of the <insert
conduct alleged, e.g., sale> of the <insert controlled
substance>.]
[In deciding whether the required (weight/volume) has been proved, do
not take into account plant or vegetable material.]
The People have the burden of proving each allegation beyond a
reasonable doubt. If the People have not met this burden, you must find
that the allegation has not been proved.
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction when the defendant is
charged with an enhancement or a probation ineligibility clause based on the
quantity of the controlled substance. (Apprendi v. New Jersey (2000) 530 U.S. 466,
490 [120 S.Ct. 2348, 147 L.Ed.2d 435].)
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Give the bracketed phrases “more than” if the defendant is charged with an
enhancement under Health and Safety Code section 11370.4. Give the bracketed
phrases “or more” if the defendant is charged under Health and Safety Code
section 11352.5 or Penal Code section 1203.07.
Give bracketed element 2 if an enhancement under Health and Safety Code section
11370.4 is alleged in a count of conspiracy. (Health & Saf. Code, § 11370.4(a);
People v. Salcedo (1994) 30 Cal.App.4th 209, 217 [35 Cal.Rptr.2d 539].) Do not
give element 2 if the defendant is not charged with conspiracy but is being
prosecuted for one or more substantive offenses on a theory of coconspirator
liability. (People v. Salcedo, supra, 30 Cal.App.4th at p. 217.) If the defendant is
charged with the enhancement on both conspiracy and substantive offenses, the
court should give this instruction once for the conspiracy charge, with element 2,
and once for all the substantive offenses, without element 2. If properly instructed,
the jury need not make a special finding that the defendant was substantially
involved. (People v. Lobato (2003) 109 Cal.App.4th 762, 766 [135 Cal.Rptr.2d
429].)
AUTHORITY
• Enhancements and Sentencing Factors. Pen. Code, §§ 1203.07(a)(1), (2) & (4);
Health & Saf. Code, §§ 11352.5, 11370.4.
• Substance Containing Controlled Substance—Need Not Be Pure. People v.
Pieters (1991) 52 Cal.3d 894, 903 [276 Cal.Rptr. 918, 802 P.2d 420].
• Knowledge of Quantity or Specific Intent Not Required. People v. Meza
(1995) 38 Cal.App.4th 1741, 1748 [45 Cal.Rptr.2d 844].
• Conspiracy Instruction. People v. Duran (2001) 94 Cal.App.4th 923, 941–942
[114 Cal.Rptr.2d 595]; People v. Salcedo (1994) 30 Cal.App.4th 209, 217 [35
Cal.Rptr.2d 539]; People v. Lobato (2003) 109 Cal.App.4th 762, 766 [135
Cal.Rptr.2d 429].
Secondary Sources
3 Witkin & Epstein, California Criminal Law (3d ed. 2000) Punishment, §§ 302,
511.
5 Witkin & Epstein, California Criminal Law (3d ed. 2000) Criminal Trial, § 644.
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91,
Sentencing, § 91.42 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.01[3][e][ii] (Matthew Bender).
RELATED ISSUES
Must Controlled Substance Actually Exist?
In Valenzuela v. Superior Court (1995) 33 Cal.App.4th 1445, 1447 [39 Cal.Rptr.2d
781], the court held that, where a defendant is charged with offering to sell, an
enhancement under Health and Safety Code section 11370.4 “must be based on the
weight of a substance in existence, not on an amount merely offered or negotiated.”
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Thus, the enhancement was not proper where the defendant negotiated to sell five
kilograms of heroin but in fact only produced less than one kilogram, or where the
defendant offered to sell four kilograms of cocaine but never possessed that
substance. (Valenzuela, supra, 33 Cal.App.4th at p. 1455.) Similarly, People v.
Lopez (1993) 20 Cal.App.4th 897, 902–903 [24 Cal.Rptr.2d 649], held that an
enhancement under Health and Safety Code section 11379.8 was not proper where
the defendant agreed to manufacture more than three pounds of methamphetamine
but failed to produce any of the substance. On the other hand, in People v. Howard
(1995) 33 Cal.App.4th 1407, 1414–1416 [39 Cal.Rptr.2d 766], the court upheld an
enhancement where the defendants agreed to purchase seven kilograms of cocaine
and had the required money on hand, but the officers conducting the undercover
operation only provided one kilogram of the substance. The court distinguished
prior holdings, finding that where a defendant is charged with conspiracy to
purchase a controlled substance in an undercover operation, it is not necessary for
the officers to produce all of the drugs promised. (Id. at p. 1416.)
Sentencing Entrapment or Manipulation
Some jurisdictions have recognized a defense of “sentencing entrapment or
manipulation,” where undercover law enforcement officers persuade a defendant to
sell or produce a greater quantity of the controlled substance for the purpose of
later obtaining a higher mandatory sentence. (See People v. Smith (2003) 31
Cal.4th 1207, 1212 [7 Cal.Rptr.3d 559, 80 P.3d 662].) The doctrine of “sentencing
entrapment” does not apply in California. (Ibid.) In Smith, the Court did not decide
whether the doctrine of “sentence manipulation” does apply. (Ibid.) The Court did
find that if the doctrine of sentence manipulation applies in California, its
application to a particular case would require “truly outrageous” conduct by law
enforcement officers. (Ibid.)
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