SERIES 2300 CONTROLLED SUBSTANCES
F 2303 Possession Of Controlled Substance While Armed With Firearm (HS 11370.1)
TABLE OF CONTENTS
F 2303.1 Titles And Identification Of Parties
F 2303.1 Inst 1 Possession Of Controlled Substance While Armed With Firearm—Title
F 2303.1 Inst 2 Identification Of Prosecution And Defendant
F 2303.2 Possession Of Controlled Substance While Armed With Firearm—Tailoring To Facts: Persons, Places, Things And Theories
F 2303.2 Inst 1 Include Definition In Elements; Tailor To Facts
F 2303.3 Possession Of Controlled Substance While Armed With Firearm—Language That Is Argumentative, Confusing, Etc. [Reserved]
F 2303.4 Possession Of Controlled Substance While Armed With Firearm—Burden Of Proof Issues
F 2303.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 2303.5 Possession Of Controlled Substance While Armed With Firearm—Elements And Definitions
F 2303.5 Inst 1 Possession As Element
F 2303.5 Inst 2 (a & b) Concurrence Of Act And Intent
F 2303.6 Possession Of Controlled Substance While Armed With Firearm—Defense Theories
F 2303.6 Inst 1 Possession: Pinpoint Instruction
F 2303.6 Inst 2 Pinpoint Instructions: Agreeing To Buy Does Not Prove Possession
F 2303.6 Inst 3 Agreement To Buy Does Not Prove Possession Based On Either Actual Control Or Right To Control
F 2303.6 Inst 4 Usable Amount: Pinpoint Instruction
F 2303.6 Inst 5 Sale Or Transportation Of Drugs: Knowledge Requirement (HS 11352 & HS 11379)
F 2303.7 Possession Of Controlled Substance While Armed With Firearm—Preliminary Fact Issues [Reserved]
F 2303.8 Possession Of Controlled Substance While Armed With Firearm— Unanimity/ Duplicity/ Multiplicity [Reserved]
F 2303.9 Possession Of Controlled Substance While Armed With Firearm—Lesser Offense Issues [Reserved]
F 2303 Notes
F 2303 Note 1 Possession Of Controlled Substance While Armed With Firearm—CALCRIM Cross-References And Research Notes
F 2303 Note 2 Equal Protection Challenge
F 2303 Note 3 Definition Of Arming
F 2303 Note 4 Possession Of Controlled Substance While Armed With A Firearm: Constructive Possession
F 2303 Note 5 Pinpoint Instruction When Underlying Felony Is Possession Of Drugs And Defendant Is Not Present
F 2303 Note 6 Whether Heller Applies To Firearm Enhancement
Return to Series 2300 Table of Contents.
F 2303.1 Titles And Identification Of Parties
F 2303.1 Inst 1 Possession Of Controlled Substance While Armed With Firearm—Title
See generally FORECITE F 201.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 2303.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 2303.2Possession Of Controlled Substance While Armed With Firearm—Tailoring To Facts: Persons, Places, Things And Theories
F 2303.2 Inst 1 Include Definition In Elements; Tailor To Facts
Adapt from FORECITE F 2300.2 Inst 1.
F 2303.3 Possession Of Controlled Substance While Armed With Firearm—Language That Is Argumentative, Confusing, Etc.[Reserved]
F 2303.4 Possession Of Controlled Substance While Armed With Firearm—Burden Of Proof Issues
F 2303.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 2303.5 Possession Of Controlled Substance While Armed With Firearm—Elements And Definitions
F 2303.5 Inst 1 Possession As Element
See FORECITE F 2302.5 Inst 1.
F 2303.5 Inst 2 (a & b) Concurrence Of Act And Intent
Alternative a:
*Modify CC 2303, Element 7, as follows [added language is underlined]:
7. While possessing that controlled substance, the defendant knew that (he/she) had the firearm available for immediate offensive or defensive use.
Alternative b:
*Combine Elements 6 and 7 as follows [added language is underlined; deleted language is stricken]:
6. While possessing that controlled substance,:
A. The defendant had a loaded, operable firearm available for immediate offensive or defensive use;
AND
7 B. The defendant knew that (he/she) had the firearm
available for immediate offensive or defensive use.
Points and Authorities
See FORECITE F 251 Inst 3.
F 2303.6 Possession Of Controlled Substance While Armed With Firearm—Defense Theories
F 2303.6 Inst 1 Possession: Pinpoint Instruction
See FORECITE F 2302.6 Inst 1.
F 2303.6 Inst 2 Pinpoint Instructions: Agreeing To Buy Does Not Prove Possession
See FORECITE F 2302.6 Inst 2.
F 2303.6 Inst 3 Agreement To Buy Does Not Prove Possession Based On Either Actual Control Or Right To Control
See FORECITE F 2302.6 Inst 3.
F 2303.6 Inst 4 Usable Amount: Pinpoint Instruction
See FORECITE F 2300.6 Inst 2.
F 2303.6 Inst 5 Sale Or Transportation Of Drugs: Knowledge Requirement (HS 11352 & HS 11379)
See FORECITE F 2300.6 Inst 3.
F 2303.7 Possession Of Controlled Substance While Armed With Firearm—Preliminary Fact Issues[Reserved]
F 2303.8 Possession Of Controlled Substance While Armed With Firearm—Unanimity/Duplicity/Multiplicity[Reserved]
F 2303.9 Possession Of Controlled Substance While Armed With Firearm—Lesser Offense Issues[Reserved]
F 2303 NOTES
F 2303 Note 1Possession Of Controlled Substance While Armed With Firearm—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
See FORECITE F 2300 Notes
CALCRIM 2300 [Sale, Transportation, Etc., of Controlled Substance]
CALCRIM 2301 [Offering to Sell, Transport, Etc., a Controlled Substance]
CALCRIM 2302 [Possession for Sale of Controlled Substance]
CALCRIM 2304 [Simple Possession of Controlled Substance]
CALCRIM 2305 [Defense: Momentary Possession of Controlled Substance]
Research Notes:
See CLARAWEB Forum, Controlled Substances—Series 2300.
F 2303 Note 2Equal Protection Challenge
People v. Edwards (1991) 235 CA3d 1700 rejected an equal protection challenge to HS 11370.1.
CALJIC NOTE: See FORECITE F 12.52 n2.
F 2303 Note 3 Definition Of Arming
HS 11370.1 defines “armed” as “having available …” For other constructions of the term see FORECITE F 3115 et seq.
CALJIC NOTE: See FORECITE F 12.52 n3.
F 2303 Note 4Possession Of Controlled Substance While Armed With A Firearm: Constructive Possession
(See FORECITE F 3306.)
CALJIC NOTE: See FORECITE F 12.52 n1.
F 2303 Note 5 Pinpoint Instruction When Underlying Felony Is Possession Of Drugs And Defendant Is Not Present
See CC 3131, Related Issues [suggesting use of pinpoint instruction]; see also CJ 17.16.2 [pinpoint instruction tracking People v. Bland (1995) 10 C4th 991].
F 2303 Note 6 Whether Heller Applies To Firearm Enhancement
District of Columbia v. Heller (2008) 554 US 570 [171 LEd2d 637; 128 SCt 2783] exempts felony conduct from the Second Amendment’s right to bear arms. However, it may be argued that the Second Amendment should apply an enhancement for being armed versus actually using a firearm.
