SERIES 2300 CONTROLLED SUBSTANCES
F 2304 Simple Possession Of Controlled Substance (HS 11350, 11377)
TABLE OF CONTENTS
F 2304.1 Titles And Identification Of Parties
F 2304.1 Inst 1 Simple Possession Of Controlled Substance—Title
F 2304.1 Inst 2 Delete The Term “Simple”
F 2304.1 Inst 3 Identification Of Prosecution And Defendant
F 2304.2 Simple Possession Of Controlled Substance—Tailoring To Facts: Persons, Places, Things And Theories
F 2304.2 Inst 1 Include Definition In Elements; Tailor To Facts
F 2304.3 Simple Possession Of Controlled Substance—Language That Is Argumentative, Confusing, Etc. [Reserved]
F 2304.4 Simple Possession Of Controlled Substance—Burden Of Proof Issues
F 2304.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 2304.4 Inst 2 (a-m) Illegal Possession Of Controlled Substance: Under The Influence Not Sufficient (HS 11350 or HS 11377)
F 2304.4 Inst 3 Possession Of Controlled Substance: Pinpoint Instruction—Possession Not Established By Expression Of Desire To Purchase Drugs And Scheduling A Meeting To Negotiate A Deal
F 2304.5 Simple Possession Of Controlled Substance—Elements And Definitions
F 2304.5 Inst 1 Possession As Element
F 2304.5 Inst 2 Definition Of Prescription
F 2304.6 Simple Possession Of Controlled Substance—Defense Theories
F 2304.6 Inst 1 Possession: Pinpoint Instruction
F 2304.6 Inst 2 Pinpoint Instructions: Agreeing To Buy Does Not Prove Possession
F 2304.6 Inst 3 Agreement To Buy Does Not Prove Possession Based On Either Actual Control Or Right To Control
F 2304.6 Inst 4 (a & b) Prescription As Defense Theory—Modification Of Burden Shifting Language
F 2304.6 Inst 5 Illegal Possession Of Controlled Substance: Under The Influence Not Sufficient (HS 11350 or HS 11377)
F 2304.6 Inst 6 Possession Of Controlled Substance: Pinpoint Instruction—Possession Not Established By Expression Of Desire To Purchase Drugs And Scheduling A Meeting To Negotiate A Deal
F 2304.6 Inst 7 Usable Amount: Pinpoint Instruction
F 2304.6 Inst 8 Sale Or Transportation Of Drugs: Knowledge Requirement (HS 11352 & HS 11379)
F 2304.6 Inst 9 Possession: Issues And Instructions
F 2304.7 Simple Possession Of Controlled Substance—Preliminary Fact Issues [Reserved]
F 2304.8 Simple Possession Of Controlled Substance—Unanimity/Duplicity/Multiplicity [Reserved]
F 2304.9 Simple Possession Of Controlled Substance—Lesser Offense Issues [Reserved]
Return to Series 2300 Table of Contents.
F 2304.1 Titles And Identification Of Parties
F 2304.1 Inst 1 Simple Possession Of Controlled Substance—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 2304.1 Inst 2 Delete The Term “Simple”
*Modify the title of CC 2304 as follows [deleted language is stricken]:
2304 Simple Possession of Controlled Substance (Health & Saf. Code, §§ 11350, 11377)
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency—Although the relevant CALCRIM jury instructions use the title “Simple Possession of Controlled Substance” [see CALCRIM 2304], the statutory description of the lesser included offense involved in petitioner’s case is “possession of a controlled substance” [HS 11350].
F 2304.1 Inst 3 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 2304.2Simple Possession Of Controlled Substance—Tailoring To Facts: Persons, Places, Things And Theories
F 2304.2 Inst 1 Include Definition In Elements; Tailor To Facts
Adapt from FORECITE F 2300.2 Inst 1.
F 2304.3 Simple Possession Of Controlled Substance—Language That Is Argumentative, Confusing, Etc.[Reserved]
F 2304.4 Simple Possession Of Controlled Substance—Burden Of Proof Issues
F 2304.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 2304.4 Inst 2 (a-m) Illegal Possession Of Controlled Substance: Under The Influence Not Sufficient (HS 11350 or HS 11377)
Alternative a:
*To be added at the end of CC 2304 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.
Alternative b [CC 3400 Pinpoint Format]:
The prosecution must prove beyond a reasonable doubt that the defendant actually possessed the ______________ <name of controlled substance> before it was used.
The defendant denies that he possessed the _______________ <name of controlled substance> and contends that his use of the _______________ <name of controlled substance>, if any, does not prove beyond a reasonable doubt that he possessed it. The prosecution must prove the defendant’s possession by evidence above and beyond the defendant’s [alleged] [use of] [or] [intoxication by] _______________ <name of controlled substance>. If you have a reasonable doubt about whether the defendant actually possessed _______________ <name of controlled substance> above and beyond his [alleged] [use of] [intoxication by] it you must find (him/her) not guilty.
Alternative c [Limitation Format]:
“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.
Alternative d [CC 359 Limitation Format]:
The defendant may not be convicted of possessing _______________ <name of controlled substance> based on his [use of] [intoxication by] it alone.
Alternative e [CC 376 Limitation Format (Short)]:
Even if you conclude that the defendant used _______________ <name of controlled substance>, you may not convict the defendant of possessing _______________ <name of controlled substance> on that fact alone.
Alternative f [CC 376 Limitation Format (Long)]:
Even if you conclude that the defendant used _______________ <name of controlled substance>, you may not convict the defendant of possessing _______________ <name of controlled substance> on that fact alone; however, if you also find that supporting evidence tends to prove (his/her) guilt, then you may conclude that the evidence is sufficient to prove (he/she) possessed _______________ <name of controlled substance>.
Remember that you may not convict the defendant of possession of _______________ <name of controlled substance>, unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.
Alternative g [CC 420 Limitation Format]:
[Use of] [Intoxication by] _______________ <name of controlled substance> is not alone sufficient to [constitute possession] [possess] _______________ <name of controlled substance>.
Alternative h [CC 521, paragraph 4 Limitation Format]:
The defendant’s [use of] [intoxication by] _______________ <name of controlled substance>, if any, does not alone determine whether (he/she) possessed the _______________ <name of controlled substance>.
Alternative i [CC 595 Limitation Format]:
Use of, or intoxication by, a controlled substance does not establish whether a person did or did not possess the controlled substance.
Alternative j [CC 1820, paragraph 3 Limitation Format]:
Even if you conclude that the defendant used or was intoxicated by _______________ <name of controlled substance>, you may not conclude that the defendant possessed the _______________ <name of controlled substance> based on (his/her) [use of] [intoxication by] it alone.
Alternative k [CC 401, paragraph 4 Limitation Format]:
If you conclude the defendant used, or was intoxicated by _______________ <name of controlled substance>, you may consider that fact in determining whether the defendant had possession of it; however, the fact that a person used or was intoxicated by a controlled substance does not, by itself, make the person guilty of possessing the controlled substance.
Alternative l [CC 362 & 372 Limitation Format]:
If you conclude the defendant used, or was intoxicated by _______________ <name of controlled substance> it is up to you to decide its meaning and importance , if any. However, evidence that the defendant [used] [was intoxicated by] _______________ <name of controlled substance> cannot prove guilt of possessing _______________ <name of controlled substance> by itself.
Alternative m [CC 450 Limitation Format]:
The fact that the defendant [used] [was intoxicated by] _______________ <name of controlled substance> is not sufficient by itself to support a finding that the defendant is guilty of possessing the _______________ <name of controlled substance>.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Right To Defense Theory Pinpoint Instruction—See FORECITE F 315.1.2 Inst 2.
Propriety Of Limitation Instruction On Matters Not Sufficient To Convict—See FORECITE F 370 Inst 8.
Under The Influence Not Sufficient To Convict—“[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; see also FORECITE F 2304 Note 1.)
“Mere evidence of use of a proscribed substance cannot circumstantially prove its ‘possession.'” (People v. Spann (1986) 187 CA3d 400, 408; see also People v. Palaschak (1995) 9 C4th 1236; 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, 9 C4th at 1241 [40 CR2d 722].)
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
[See Brief Bank # B-835 for additional briefing on this issue.]
CALJIC NOTE: See FORECITE F 12.00b/F 12.00d.
F 2304.4 Inst 3 Possession Of Controlled Substance: Pinpoint Instruction—Possession Not Established By Expression Of Desire To Purchase Drugs And Scheduling A Meeting To Negotiate A Deal
[Adapt from FORECITE F 2304.4 Inst 2.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Right To Defense Theory Pinpoint Instruction—See FORECITE F 315.1.2 Inst 2.
Propriety Of Limitation Instruction On Matters Not Sufficient To Convict—See FORECITE F 370 Inst 8.
Desire To Purchase Drugs Not Sufficient To Convict—“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].)
CALJIC NOTE: See FORECITE F 12.00 n12.
F 2304.5 Simple Possession Of Controlled Substance—Elements And Definitions
F 2304.5 Inst 1 Possession As Element
See FORECITE F 2302.5 Inst 1.
F 2304.5 Inst 2 Definition Of Prescription
See CALJIC 12.30.1, paragraph 2.
F 2304.6 Simple Possession Of Controlled Substance—Defense Theories
F 2304.6 Inst 1 Possession: Pinpoint Instruction
See FORECITE F 2302.6 Inst 1.
F 2304.6 Inst 2 Pinpoint Instructions: Agreeing To Buy Does Not Prove Possession
See FORECITE http://forecite.com/series-2300-controlled-substances/f-2302-1-titles-and-identification-of-parties.
F 2304.6 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 2304.6 Inst 4 (a & b) Prescription As Defense Theory—Modification Of Burden Shifting Language
Alternative a:
*Modify CC 2304, last paragraph <Defense: Prescription> sentence 1 as follows [added language is underlined; deleted language is stricken]:
[The defendant is not guilty of possessing __________ <insert type of controlled substance> if unless (he/she) had did not have a valid, written prescription for that substance from a physician, dentist, podiatrist, or veterinarian licensed to practice in California.
Alternative b [CC 3400 [Alibi] format]:
The prosecution must prove the defendant unlawfully possessed __________ <insert type of controlled substance>. The defendant contends (his/her) possession was lawful because (he/she) had a valid, written prescription for that substance from a physician, dentist, podiatrist, or veterinarian licensed to practice in California.
The prosecution must prove that the defendant did not have such a valid prescription for __________ <insert type of controlled substance>. The defendant does not need to prove that (he/she) had such a prescription.
If you have a reasonable doubt that the prosecution has proven the defendant did not have a valid prescription you must find (him/her) not guilty.
Points and Authorities
See FORECITE F 401.6 Inst 1.
F 2304.6 Inst 5 Illegal Possession Of Controlled Substance: Under The Influence Not Sufficient (HS 11350 or HS 11377)
See FORECITE F 2304.4 Inst 2.
F 2304.6 Inst 6 Possession Of Controlled Substance: Pinpoint Instruction—Possession Not Established By Expression Of Desire To Purchase Drugs And Scheduling A Meeting To Negotiate A Deal
See FORECITE F 2304.4 Inst 3.
F 2304.6 Inst 7 Usable Amount: Pinpoint Instruction
See FORECITE F 2300.6 Inst 2.
F 2304.6 Inst 8 Sale Or Transportation Of Drugs: Knowledge Requirement (HS 11352 & HS 11379)
See FORECITE F 2300.6 Inst 3.
F 2304.6 Inst 9 Possession: Issues And Instructions
See FORECITE F 3306.
F 2304.7 Simple Possession Of Controlled Substance—Preliminary Fact Issues[Reserved]
F 2304.8 Simple Possession Of Controlled Substance—Unanimity/Duplicity/Multiplicity[Reserved]
F 2304.9 Simple Possession Of Controlled Substance—Lesser Offense Issues[Reserved]
