Return to CALJIC Part 1-2 – Contents
F 1.24 n1 Possession: Intoxication As Defense To Knowledge Element.
Possession requires knowledge of the object possessed. (See CJ 1.24.)
The question of whether the knowledge element may be negated by intoxication, mental defect, etc. is discussed at FORECITE F 4.21 n4.
F 1.24 n2 Possession: Juror Unanimity.
Where a possession crime is based upon two or more individual units of contraband reasonably distinguishable by a separation in time and/or space, and there is evidence as to each unit from which a reasonable jury could find that it was solely possessed by a person or persons other than the defendant, the jury should be given a unanimity instruction. (See FORECITE F 17.01 n6.)
F 1.24 n3 Constructive Possession: Immediate Accessibility In Place Under Defendant’s Control.
Constructive possession requires that the contraband be immediately accessible to the defendant in a place under his or her control. (People v. Newman (71) 5 C3d 48, 53 [95 CR 12]; see also, People v. Austin (94) 23 CA4th 1596, 1608-09 [28 CR2d 885].)
F 1.24 n4 Possession: Inability To Escape With The Contraband Does Not Negate Possession.
The fact that the police officers who were observing a drug sale had no intention of allowing the defendants to get away with the contraband does not bear on the issue of the defendant’s possession. (People v. Austin (94) 23 CA4th 1596, 1609, fn 2 [28 CR2d 885]; see also, People v. Wesley (90) 224 CA3d 1130, 1145-46 [274 CR 326].)
F 1.24 n5 Possession: Duty to Define “Right To Control.”
Whether or not the defendant has a “right to control” within the meaning of constructive possession may depend on technical legal rules. (E.g., when landlord/tenant rules may apply.) In such cases, the jury must be instructed on the technical legal meaning of right to control. (See generally, FORECITE PG II(B).) [See Brief Bank # B-623 for additional briefing on this issue.]
F 1.24 n6 Possession: Defendant Permitted To Comment On Lack Of Fingerprint Evidence.
In U.S. v. Thompson (9th Cir. 1994) 37 F3d 450, the court held that a defendant is entitled to argue that the government’s failure to present certain types of evidence (e.g., fingerprints) weakens its case. For example, when the defense is lack of knowledge or possession, the lack of fingerprint evidence is a relevant fact which may be elicited by defense counsel during direct or cross examination of witnesses, and incorporated into counsel’s closing argument. (Ibid.)
While the right to an instruction on this point was not at issue in Thompson, counsel may wish to consider offering a pinpoint instruction when the lack of fingerprint evidence relates to a theory of the defense. (See FORECITE PG III(A).)
CAVEAT: It has been held that expert testimony in support of the prosecution regarding the absence of fingerprint evidence may be admitted in rebuttal to evidence that the only identifiable fingerprints did not match the defendant’s. (See U.S. v. Burdeau (9th Cir. 1999) 168 F3d 352.)
Some cases may require strategic evaluation of whether or not to argue lack of fingerprint evidence. For example, in U.S. v. Murillo (9th Cir. 2001) 255 F3d 1169 the defendant “designated a fingerprint expert before trial and argued in his defense at trial that no fingerprints were found on the drug packages.” (Murillo, 255 F3d at 1177.) In response, the court permitted expert testimony about the operation and structure of drug trafficking organizations, even though it was a non-complex, non-conspiracy case. (See also U.S. v. McGowan (9th Cir. 2001) 274 F3d 1251, 1254-55.)
F 1.24 n7 Constructive Possession: Participation In Drug Transaction Does Not Prove Possession Of Drugs Or Money Possessed By Others.
In People v. Howard (95) 33 CA4th 1407, 1418-20 [39 CR2d 766], the court held that the defendant could not be found to have constructively possessed money which the co-defendant brought to the transaction for the purpose of purchasing drugs. (See also, U.S. v. Kearns (9th Cir. 1995) 61 F3d 1422 [co-conspirator’s brief touching and smelling of marijuana in car trunk insufficient to establish possession].) Similarly, in People v. Tambini (69) 275 CA2d 757, 764-66 [80 CR 179] it was held that the defendant who put a buyer and seller together for a finder’s fee never possessed the marijuana which was sold.
F 1.24a Constructive Possession Defined: Agreement Or Contract To Purchase Not Sufficient
*To be added following ¶ 4 of CJ 1.24 (1989 Rev):
A verbal agreement or contract to purchase __________ [insert item allegedly possessed] will not, alone, establish constructive possession. The nature and terms of such purchase agreements are factors for you to consider in determining whether the defendant has exercised the requisite control over the illegal goods.
Points and Authorities
CJ 1.24 contains the following language:
“Constructive possession does not require actual possession but does require that a person knowingly have the right of control over a thing, either directly or through another person or persons.”
This language could be interpreted by the jury to mean that constructive possession is established in a case where the defendant has entered into a contract or agreement to purchase the contraband.
However, in Armstrong v. Superior Court (90) 217 CA3d 535, 538-40 [265 CR 877], the court rejected “the position that a verbal agreement or contract to purchase drugs will, alone, establish constructive possession. (Armstrong at 540.) The court went on to observe that it found “no authority which has established constructive possession based upon a bare agreement to purchase illegal contraband. Rather, the nature and terms of the purchase agreements are more appropriately factors in determining whether a defendant has exercised the requisite control over the illegal goods. (Ibid.)
The Armstrong court concluded that constructive possession was not shown under the facts of that case. “A defendant agreeing to meet the police, paying for and standing ready to receive the goods, without more, does not constitute the requisite control necessary to establish constructive possession.” (Ibid.) However, because the defendant was prepared to take immediate physical possession of the drugs he could be convicted of attempted possession. (Ibid.; see also People v. Barnes (97) 57 CA4th 552 [67 CR2d 162] [constructive possession theory was “legally incorrect” where based only on an agreement to purchase cocaine].)
Therefore, because the constructive possession language utilized in CALJIC may mislead the jury, the above instruction should be given when the evidence warrants it.
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII.]
(See FORECITE F 6.10i [Drug Conspiracy Cases: Buyer-Seller Instruction].)
NOTES
Because an agreement to purchase may constitute only attempted possession, CJ 6.00 and CJ 17.10 should be given when warranted by the evidence. (See FORECITE LIO III for general rules and other specific developments regarding the law of attempts; see also FORECITE F 12.06 n1 re: momentary possession.)
F 1.24b
Constructive Possession: Access Alone Is Insufficient
*Add the following to CJ 1.24, ¶ 3:
However, access to the thing, without more, is insufficient to support a finding of possession.
ALTERNATIVE FORM:
Access to the items at issue, without more, is insufficient to support a finding the defendant was in possession of those items.
[Source: People v. Jaffe DEPUBLISHED (2005) 122 CA4th 1559 [this “mere access” instruction stated general principle properly but would have been confusing because defendant did not have “mere access” to the drugs].]
Points and Authorities
In Goodlow v. Superior Court (80) 101 CA3d 969, 975 [162 CR 121], the court emphasized that opportunity of access is not the equivalent of dominion and control necessary to establish constructive possession. (See alsoPeople v. Land (94) 30 CA4th 220, 223; FORECITE F 1.24g; FORECITE F 1.24h.) The court relied upon a well established line of cases to support its conclusion that opportunity of access to a place where narcotics are found, without more, will not support a finding of unlawful possession. (Ibid.; see also U.S. v. Highsmith (9th Cir. 2001) 268 F3d 1141 [even though defendant had access to and dealt drugs from his cohort’s bedroom where the gun was found, this was insufficient evidence of constructive possession absent evidence that the defendant knew of the firearm]; U.S. v. Vallejo (9th Cir. 2001) 237 F3d 1008, 1024 [burden to show defendant had knowledge that the car he was driving contained drugs; correct jury instruction was available in the 9th Circuit Model Instructions]; U.S. v. Ramirez (9th Cir. 1999) 176 F3d 1179 [possession not established by the defendant’s mere presence in a drug-laden vehicle, or mere knowledge of the presence of the contraband]; U.S. v. Kelso (9th Cir. 1991) 942 F2d 680 [access to gun is necessary but insufficient to establish constructive possession].)
Therefore, when contraband is found at a place to which a defendant and others have access and over which none has exclusive control, the above supplement to the definition of constructive possession should be given upon request if it reflects the theory of the defense. (See FORECITE PG III(A).)
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII.]
RESEARCH NOTES
See, Annotation, Conviction of possession of illicit drugs found in premises of which defendant was in non-exclusive possession, 56 ALR3d 948 and Later Case Service. See also, Annotation, Conviction of possession of illicit drugs found in automobile of which defendant was not sole occupant, 57 ALR3d 1319 and Later Case Service; see also annotation, drug abuse: what constitutes illegal constructive possession under 21 USCS §841(a)(1), prohibiting possession of a controlled substance with intent to manufacture, distribute, or dispense the same, 87 ALR Fed 309 and Later Case Service; annotation, drug use: what constitutes illegal constructive possession under, etc.
F 1.24c
Constructive Possession: Premises Shared By More Than One Person
*Add to CJ 1.24:
When the premises are shared by more than one person, mere proximity to contraband, presence on the property where it is found, and association with a person or persons having control of it are all insufficient to establish constructive possession. However, these factors may be considered, in conjunction with other evidence, in determining whether the defendant had dominion and control over the contraband.
Points and Authorities:
“It is fundamental to our system of criminal law that guilt is individual … [T]hat means that there must be sufficient evidence to support a finding, as to each defendant, that he or she had possession of the [contraband] ….” (Delgado v. U.S. (9th Cir. 1964) 327 F2d 641, 642; see also U.S. v. Earl (9th Cir. 1994) 27 F3d 423.) Hence, when the premises are shared by more than one person, the jury must find, based on rational inferences from the evidence, that it was the defendant who had dominion and control over the contraband. (See Goodlow v. Sup.Ct. (80) 101 CA3d 969, 975 [162 CR 121; see also U.S. v. Highsmith (9th Cir. 2001) 268 F3d 1141 [even though defendant had access to and dealt drugs from his cohort’s bedroom where the gun was found, this was insufficient evidence of constructive possession absent evidence that the defendant knew of the firearm].)
NOTES
[A brief arguing that the court has a sua sponte obligation to instruct upon this principle is available to FORECITE subscribers. Ask for Brief Bank # B-633.]
F 1.24d Possession: Accidental Possession Negates Intent
*Add to CJ 1.24 when appropriate:
If the defendant acquired possession of an illegal object through misfortune or accident and did not intentionally exercise control over the object, the defendant cannot be convicted of illegal possession of the object. If you have a reasonable doubt whether the defendant intentionally exercised control over the object, you must give the defendant the benefit of that doubt and find [him] [her] not guilty.
Points and Authorities
If the defendant could be held criminally liable for possession of an illegal item acquired through misfortune or accident without any intent to exercise control over or to have custody of the item, the defendant would be strictly liable for the crime even under innocent circumstances. Accordingly, in order to convict the defendant of a possession crime, the jury must find the existence of the requisite criminal intent to exercise control over or to have custody of the item. (People v. Jeffers (96) 41 CA4th 917, 922 [49 CR2d 86].)
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
F 1.24e Possession: Definition Of Control
*Add to CJ 1.24 when appropriate:
For the purposes of this instruction the term “control” means the power to produce or dispose of the object in question.
Points and Authorities
The above definition of control was set forth in State v. Montoya (NM 1979) 594 P2d 1190, 1192 [92 NM 734]. This comports with the definition utilized in other contexts e.g., the “power or authority to check or restrain.” (SeeGaines v. State (IN 1974) 316 NE2d 842, 844 [161 Ind.App. 632]; see also State v. Hogue (HI 1971) 486 P2d 403, 408 [52 Haw. 660] [definition of “ownership or control” for purposes of prohibition was “the power of distribution to others”].)
F 1.24f Possession: Right To Control Must Be Knowing
*Modify paragraph 3 of CJ 1.24 to provide as follows [added language is capitalized, deleted language is between << >>]:
Constructive possession does not require actual possession but does require that a person
1. Knowingly exercise control over THE OBJECT, EITHER DIRECTLY OR THROUGH ANOTHER PERSON OR PERSONS; or
2. KNOWINGLY EXERCISE the right to control <<a>> THE <<thing>> OBJECT, either directly of through another person or persons.
Points and Authorities
CALJIC has attempted to add a knowledge requirement to its definitions of actual possession and constructive possession in CJ 1.24. Such an additional element is necessary above and beyond direct or indirect control because, otherwise, innocent, unknowing possession could be punished. (See e.g., People v. Jeffers (96) 41 CA4th 917, 922 [49 CR2d 86].)
Hence, CJ 1.24 should be modified as set forth above to assure that the knowledge requirement is applied to constructive possession based on the right to control the object. The right to control must be knowing because otherwise the defendant could be found in possession of an object based on a right to possess it about which the defendant was unaware. For example, a wife may have a community property right to an object possessed by her husband but unless she intentionally exercises that right she should not be criminally liable for possessing the object. (See generally People v. Jeffers, supra.)
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon or failure to adequately instruct upon a defense or defense theory violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See generally, FORECITE >PG VII(C).]
F 1.24g Mere Presence Not Sufficient For Possession
*Add the following to CJ 1.24, ¶ 3:
However, mere presence near an object, without more, is insufficient to support a finding of possession.
Points and Authorities
In Goodlow v. Superior Court (80) 101 CA3d 969, 975, the court emphasized that opportunity of access is not the equivalent of dominion and control necessary to establish constructive possession. The court relied upon a well established line of cases to support its conclusion that opportunity of access to a place where narcotics are found, without more, will not support a finding of unlawful possession. (Ibid.; see also U.S. v. Highsmith (9th Cir. 2001) 268 F3d 1141 [even though defendant had access to and dealt drugs from his cohort’s bedroom where the gun was found, this was insufficient evidence of constructive possession absent evidence that the defendant knew of the firearm]; U.S. v. Vallejo (9th Cir. 2001) 237 F3d 1008, 1024 [burden to show defendant had knowledge that the car he was driving contained drugs; correct jury instruction was available in the 9th Circuit Model Instructions]; U.S. v. Ramirez (9th Cir. 1999) 176 F3d 1179 [possession not established by the defendant’s mere presence in a drug-laden vehicle, or mere knowledge of the presence of the contraband]; U.S. v. Kelso (9th Cir. 1991) 942 F2d 680 [access to gun is necessary but insufficient to establish constructive possession].)
Hence, “mere presence near the stolen property in and of itself is insufficient evidence of possession to sustain a conviction for receiving stolen property.” (In re Anthony J. (2004) 117 CA4th 718, 728; see also People v. Land(94) 30 CA4th 220, 223-224.)
F 1.24h Mere Presence Not Sufficient For Possession
*Add the following to CJ 1.24, ¶ 3:
However, merely being a passenger in a vehicle, without more, is insufficient to support a finding of possession of [the vehicle] [an object in the vehicle not otherwise proven to be under the passenger’s dominion and control].
Points and Authorities
See (In re Anthony J. (2004) 117 CA4th 718, 728; People v. Land (94) 30 CA4th 220, 223.