Return to CALJIC Part 9-12 – Contents
F 12.00 n1 Drug Possession: Intoxication Or Mental Impairment As Defense To Knowledge Element (HS 11350 or HS 11377).
Knowledge of both the presence and nature of the controlled substance are requisite elements of a drug possession charge. (See CJ 12.00 and authorities cited therein; and CJ 1.24.)
In People v. Reyes (97) 52 CA4th 975 [61 CR2d 39], the court noted that “[a] general intent crime may also involve a specific mental state, such as knowledge.” (52 CA4th at 983.) As an example, Reyes relied on People v. Foster (71) 19 CA3d 649 [97 CR 94]. Foster involved a charge of unlawful possession of narcotics. In addition to proving general intent to possess the drug, Foster noted, the prosecution must prove the accused knew the material was a narcotic. (19 CA3d at 655.) In determining this knowledge, Foster said, “[i]ntoxication has obvious relevance to the question of awareness, familiarity, understanding and the ability to recognize and comprehend.” (Ibid.) Hence, when appropriate, the jury should be instructed to consider whether voluntary intoxication negated the required knowledge element for possession offenses such as possession of controlled substances and illegal weapons. (See also FORECITE F 4.21 n4.)
[Research Note: See FORECITE BIBLIO 12.00]
F 12.00 n2 Possession: Juror Unanimity (HS 11350 or HS 11377).
In a prosecution for possession or possession for sale of a controlled substance, an instruction upon juror unanimity is required where the possession is based upon two or more individual units of contraband reasonably distinguishable by a separation in time and/or space. (See FORECITE F 17.01 n6.)
[Research Note: See FORECITE BIBLIO 12.00]
F 12.00 n3 Possession: Multiple Conviction (HS 11350 or HS 11377).
As to the permissibility of multiple conviction for the possession of multiple units of contraband see FORECITE F 17.02 n4.
[Research Note: See FORECITE BIBLIO 12.00]
F 12.00 n4 Sufficiency Of Police Officer Testimony To Establish Base Cocaine (HS 11350, HS 11351.5, HS 11352).
People v. Adams (90) 220 CA3d 680 [269 CR 279] held that absent testimony of chemical analysis, the evidence was insufficient to support a conviction, since the arresting officer was not qualified as an expert in the identification of cocaine or cocaine base, nor was there expert testimony that physical appearance alone was a sufficient basis for the identification of a substance containing “cocaine base” as opposed to a substance containing “cocaine.” (Adams, at 687-88.)
People v. Bailey (91) 1 CA4th 459, 462-63 [2 CR2d 204] held that the testimony of a trained narcotics officer, received without objection, that the substance was rock cocaine and that rock cocaine was the same as base cocaine, combined with a criminalist’s testimony that the substance tested positive for cocaine was sufficient to support conviction. (Bailey, at 465; but see People v. Rodriguez REV GTD/DISD/DEPUB (96) 47 CA4th 424, 427 [54 CR2d 801] [absent testimony of results of analysis, officer’s testimony that substance was “rock cocaine” didn’t close evidentiary gap because officer didn’t testify that “rock cocaine” was cocaine base]; review granted on different issue.)
People v. Carter (97) 55 CA4th 1376 [64 CR2d 747] held that the trial court may properly admit expert opinion testimony that the defendant possessed raw cocaine for purposes of sale, based on the quantity of the drug possessed. In so doing, the court distinguished People v. Newman (71) 5 C3d 48, 53 [95 CR 12] which held that as to drugs which may be purchased by prescription, a police officer’s opinion that the drugs were possessed for purposes of sale is normally worthy of little or no weight.
[Research Note: See FORECITE BIBLIO 12.00]
F 12.00 n5 Possession: Entrapment (HS 11350 or HS 11377).
See FORECITE F 4.60, et al.; see also Annotation, Modern status of the law concerning entrapment to commit narcotics offense — state cases, 62 ALR3d 110 and Later Case Service; Annotation, Modern status of the law concerning entrapment to commit narcotics offense–federal cases, 22 ALR Fed. 731 and Later Case Service.
[Research Note: See FORECITE BIBLIO 12.00]
F 12.00 n6 Possession: Usable Quantity (HS 11350 or HS 11377).
It is well settled that “usable quantity” is an element of possession and possession for sale of a controlled substance under HS 11350, HS 11351, HS 11351.5, HS 11377, HS 11378 and HS 11378.5. (People v. Leal (66) 64 C2d 504, 511-12 [50 CR 777]; People v. Rushing (89) 209 CA3d 618, 621 [257 CR 286]; People v. Camp (80) 104 CA3d 244, 248 [163 CR 510]; see also People v. Taylor DEPUBLISHED (2000) 80 CA4th 804 [95 CR2d 357] [jury asked if there was a minimum amount necessary; court should have informed jurors that possession of an amount that is “useless” is not a crime].)
However, in People v. Rubacalba (93) 6 C4th 62, 64-67 [23 CR2d 628], the court held that the usable-quantity rule prohibits conviction only when the substance possessed simply cannot be used, such as when it is a blackened residue or a useless trace. No particular purity or narcotic effect need be proven. (Ibid.; see also, State v. Baker (95) 912 SW2d 541 [possession of a crack pipe containing burnt cocaine residue detectable through lab analysis but too small to measure will not sustain a conviction for possession of cocaine. Only a measurable quantity of a drug can sustain a conviction for possession. The residue present on the pipe indicates only that it had been used to smoke cocaine in the past and the most the defendant may be found guilty of is possession of drug paraphernalia].)
The Rubacalba court did note, however, that the concentration of the substance might in some situations be relevant to the element of knowledge. (Rubacalba 6 C4th at 66.)
See Annotation, Minimum quantity of drug required to support claim that defendant is guilty of criminal “possession” of drug under state law, 4 ALR5th 1 and Later Case Service.
[Research Note: See FORECITE BIBLIO 12.00]
F 12.00 n7 Possession: Sufficiency Of Evidence To Establish Possession (HS 11350 or HS 11377).
Evidence that the defendant used or ingested a controlled substance is not sufficient, standing alone, to prove past possession. (People v. Palaschak (95) 9 C4th 1236, 1240-41 40 CR2d 722]; see also People v. Spann (86) 187 CA3d 400, 403 [232 CR 31]; but cf. In re Dikes (2004) 121 CA4th 825 [drug tests showing use of controlled substance was “some evidence” of possession but was insufficient to impose prisoner discipline]; see FORECITE F 12.00d.)
[Research Note: See FORECITE BIBLIO 12.00]
F 12.00 n8 Drug Possession: Defendant Permitted To Comment On Lack Of Fingerprint Evidence (HS 11350 or HS 11377).
[See FORECITE F 1.24 n6.]
[Research Note: See FORECITE BIBLIO 12.00]
F 12.00 n9 Drug Possession: Duty To Define “Right To Control” (HS 11350 or HS 11377).
[See FORECITE F 1.24 n5.]
[Research Note: See FORECITE BIBLIO 12.00]
F 12.00 n10 Possession Of Controlled Substances In Jail Or Prison.
The use note to CJ 12.00 states that this instruction is appropriate in prosecution under PC 4573.6 [unauthorized possession of drugs in a penal institution]. However, there are certain differences between the elements of PC 4573.6 and HS 11350 and HS 11377. (See FORECITE F 18.30a for specific discussion of PC 4573.6.)
F 12.00 n11 Controlled Substance In HS 11054(f) Need Not Have A Stimulant Effect.
The controlled substances governed by HS 11054(f) are described as having a “stimulant effect on the central nervous system.” However, this language is merely descriptive and does not require the prosecution to prove that the specific substance upon which the charge is based has an actual stimulant effect on the central nervous system. (People v. Sherman (97) 57 CA4th 102 [66 CR2d 764].)
F 12.00 n12 Attempted Possession Of Controlled Substance: Not Established By Expression Of Desire To Purchase Drugs And Scheduling A Meeting To Negotiate A Deal.
“When key elements of the drug deal are incomplete, making an appointment with a known drug supplier, even one who has previously fronted drugs to the defendant at a fixed price,… ‘is not of itself such a commitment to an intended crime as to constitute an attempt, even though it may make a later attempt possible.’ [Citation.]” (U.S. v. Yossunthorn (9th Cir. 1999) 167 F3d 1267, 1271; see also U.S. v. Cea (7th Cir. 1990) 914 F2d 881, 887-88 [no attempt where defendant left home following a phone call in which he agreed to meet agents presumably to pick up the drugs; no evidence that location had been agreed on for the meeting or that defendant had the money with him to purchase the drugs].)
F 12.00 n13 Substance Abuse And Crime Prevention Act of 2000.
Proposition 36, passed by the voters November 7, 2000, added PC 1210, PC 1210.1 and PC 3063.1 concerning convictions for nonviolent drug possession offenses. PC 1201.1(a) requires the court to impose probation on any person convicted of a nonviolent drug possession offense, except as otherwise provided. CD-ROM subscribers can access the text of Proposition 36 by searching for “Proposition 36.”
The California District Attorney’s Association has posted its “Proposition Implementation Guidelines” for Proposition 36 on its website (http://www.cdaa.org/proposition.aspx).
Substance Abuse And Crime Prevention Act Of 2000: Marijuana Cultivation. As to whether persons convicted of cultivation of marijuana qualify under the provisions of the Act, see People v. Sharp (2003) 112 CA4th 1336 [cultivation of marijuana not a nonviolent drug possession offense because the ordinary meaning of cultivation was not possession, use, or transportation for personal use or being under the influence of a controlled substance; moreover, cultivation was specifically excluded under PC 1210(a)].
Conviction of Both A Nonviolent Drug Possession Offense And Of Driving Under The Influence (VC 23152(b)). As to whether persons convicted of both a nonviolent drug possession offense and of driving under the influence qualify under the provisions of the Act, see People v. Cantu DEPUBLISHED (2004) 112 CA4th 729 [granting persons treatment under the Act when they had been convicted of both a nonviolent drug possession offense and of driving under the influence would have been contrary to the intent of the Act. The crime of driving under the influence disqualified a defendant from treatment under the Act because the gravamen of the crime made the crime different from those to which the statute intended to apply].
Applicability of Apprendi, Ring and Blakely to Proposition 36. See People v. Dove (2004) 124 CA4th 1 [Proposition 36 is a sentence reduction statute so Apprendi/Blakely are not applicable and a judge can rely on a fact not found by the jury].
Equal Protection Challenge Based On Distinction Between Probationers And Parolees. Proposition 36 probation does not offend the equal protection clause by differentiating between probationers and parolees. (People v. Guzman (2005) 35 C4th 577.)
F 12.00 n14 Drug Possession: Canine “Alert” — Dog’s Reliability Must Be Established.
Canine identification or ‘alert’ of illegal narcotics provides probable cause for the issuance of a search warrant, so long as the dog’s reliability is established. (See Grant v. City of Long Beach (9th Cir. 2002) 315 F3d 1081, 1085-86; United States v. Lingenfelter (9th Cir. 1993) 997 F2d 632, 639; see also United States v. Spetz (9th Cir. 1983) 721 F2d 1457, 1464 (overruled on other grounds) [“A validly conducted dog sniff can supply the probable cause necessary for issuing a search warrant only if sufficient reliability is established by the application for the warrant”]; United States v. $ 22,474 (9th Cir. 1993) 246 F3d 1212, 1216-17 [positive alert by police dog with “sophisticated” training constituted probable cause for a search when combined with other corroborating evidence]; United States v. Ludwig (10th Cir. 1994) 10 F3d 1523, 1527 [a dog alert usually is at least as reliable [for the presence of drugs] as many other sources of probable cause” unless “the particular dog had a poor accuracy record”]; United States v. Diaz (6th Cir. 1994) 25 F3d 392, 394 [“For a positive dog reaction to support a determination of probable cause, the training and reliability of the dog must be established”].)
F 12.00a
Agreement Or Contract To Purchase: Not Possession
*Re: CJ 12.00:
[See FORECITE F 1.24a.]
F 12.00b
Illegal Possession Of Controlled Substance:
Under The Influence Not Sufficient
(HS 11350 or HS 11377)
*To be added at the end of CJ 12.00 (1989 Rev) when appropriate:
“Possession” as used in this instruction does not mean “use.” Mere evidence of use, or being under the influence, of __________ [insert specific controlled substance] cannot circumstantially prove its possession.
Points and Authorities
“Mere evidence of use of a proscribed substance cannot circumstantially prove its ‘possession.’” (People v. Spann (86) 187 CA3d 400, 408 [232 CR 31]; but cf. In re Dikes (2004) 121 CA4th 825 [drug tests showing use of controlled substance was “some evidence” of possession but was insufficient to impose prisoner discipline]; see also Rucker & Overland, California Criminal Forms & Instructions § 43:56B.)
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 12.00c
Recent Past Possession Of Controlled Substance
That Is Ultimately Consumed Does Not Prove Possession
(HS 11350 or HS 11377)
*Re: CJ 12.00:
See FORECITE F 12.00d.
F 12.00d
Possession Of Controlled Substance:
Use Alone Not Sufficient To Prove Possession
(HS 11350 or HS 11377)
*To be added at the end of CJ 12.00 (1989 Rev) when appropriate:
“Possession” as used in this instruction requires more than mere ingestion of the drug. The prosecution must prove, with evidence over and above mere ingestion or use, that the defendant possessed the drug at some time prior to its use or ingestion.
Points and Authorities
“[E]vidence of being under influence of a contraband substance, or other evidence of having introduced it into one’s body, is [not] by itself proof of present or past possession.” (People v. Morales (2001) 25 C4th 34, 44 [104 CR2d 582].)
“Mere evidence of use of a proscribed substance cannot circumstantially prove its ‘possession.’” (People v. Spann (86) 187 CA3d 400, 408 [232 CR 31]; but cf. In re Dikes (2004) 121 CA4th 825 [drug tests showing use of controlled substance was “some evidence” of possession but was insufficient to impose prisoner discipline]; see also Rucker & Overland, California Criminal Forms & Instructions § 43:56B.)
However, ingestion of the drug does not preclude conviction for possession where “there exists sufficient direct or circumstantial evidence of past possession, over and above evidence of mere use or ingestion.” (People v. Palaschak (95) 9 C4th 1236, 1241 [40 CR2d 722].) [See Brief Bank # B-835 for additional briefing on this issue.]
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).]
