California Criminal Jury Instructions (CALCRIM) (2017)

3201. Controlled Substance: Quantity - Manufacture of Controlled Substance

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3201.Controlled Substance: Quantity—Manufacture of Controlled
Substance (Health & Saf. Code, § 11379.8)
If you find the defendant guilty of the crime[s] charged in Count[s]
<insert counts charging manufacturing or processing of controlled
substance>, you must then decide whether[, for each crime,] the People
have proved the additional allegation that the crime involved more than
a specified amount 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. A substance used in, to be used in, or produced during the
(manufacturing/ <insert description of alleged other
process>) process contained <insert controlled
substance from Health & Saf. Code, §§ 11054–11058>;
[AND]
2. The substance containing <insert controlled
substance> was more than <insert quantity alleged>
by (weight/volume)(./;)
<Give element 3 if enhancement alleged in conspiracy count.>
[AND
3. The defendant was substantially involved in the direction or
supervision of, or in a significant portion of the financing of, the
(manufacturing/ <insert description of alleged other
process>) of <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 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 bracketed element 3 if the enhancement is alleged in a count of conspiracy to
manufacture a controlled substance. (Health & Saf. Code, § 11379.8(e); People v.
Duran (2001) 94 Cal.App.4th 923, 941 [114 Cal.Rptr.2d 595].) Do not give
element 3 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. Duran, supra, 94 Cal.App.4th at p. 942.) 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 3, and once for all the
substantive offenses, without element 3. 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
• Enhancement. Health & Saf. Code, § 11379.8.
Substance Containing Controlled Substance—Need Not Be Pure. People v.
Burgio (1993) 16 Cal.App.4th 769, 774 [20 Cal.Rptr.2d 397].
• Substance Containing Controlled Substance—Used or to Be Used in
Process. People v. Hard (2003) 112 Cal.App.4th 272, 275 [5 Cal.Rptr.3d 107].
• 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][c] (Matthew Bender).
RELATED ISSUES
Combining Measurements
Health and Safety Code section 11379.8 provides two sets of measurements, one
for “liquid by volume” and one for “solids by weight.” “[S]o long as there is
sufficient evidence, the trier of fact should be permitted to add the common
measures of the seized substances in order to meet the statute’s standards.” (People
v. Good (1990) 217 Cal.App.3d 1533, 1537 [266 Cal.Rptr. 608].)
ENHANCEMENTS AND SENTENCING FACTORS CALCRIM No. 3201
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See the Related Issues section of CALCRIM No. 3200, Controlled Substance:
Quantity.
3202–3219. Reserved for Future Use
CALCRIM No. 3201 ENHANCEMENTS AND SENTENCING FACTORS
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