SERIES 2300 CONTROLLED SUBSTANCES
F 2305 Defense: Momentary Possession Of Controlled Substance
TABLE OF CONTENTS
F 2305.1 Titles And Identification Of Parties
F 2305.1 Inst 1 Defense: Momentary Possession Of Controlled Substance —Title
F 2305.1 Inst 2 Identification Of Prosecution And Defendant
F 2305.2 Defense: Momentary Possession Of Controlled Substance—INstructions
F 2305.2 Inst 1 Momentary Possession Of Controlled Substance: Clarification Of Language
F 2305.2 Inst 2 Preponderance Is A “Lesser” Standard Than Proof Beyond A Reasonable Doubt
F 2305.2 Inst 3 Defendant’s Burden As To Affirmative Defense Does Not Change Prosecution’s Burden To Prove All Elements Beyond A Reasonable Doubt
F 2305.2 Inst 4 (a & b) Momentary Possession: Even If Defense Not Proven; Prosecution Must Still Prove Elements Of Charge And Jury Must Consider Evidence Of Momentary Possession As To The Elements
F 2305.2 Inst 5 Momentary Possession: Prosecution Should Have Burden Of Proof
F 2305.2 Inst 6 Temporary Possession Defense Applies Even Though The Contraband Was Abandoned/Discarded For The Purpose Of Concealment From The Police
F 2305.2 Inst 7 Unintentional Possession/Momentary Possession
F 2305.2 Inst 8 Momentary Handling Of Drugs Insufficient Without Evidence Of Assent To The Purchase [CC 3400 Format]
F 2305 Notes
F 2305 Note 1 Defense: Momentary Possession Of Controlled Substance [Reserved]
F 2305 Note 2 Momentary Possession Defense: Not Applicable To Prison Inmates (PC 4502)
F 2305 Note 3 Momentary Possession: Weapons Exceptions
Return to Series 2300 Table of Contents.
F 2305.1 Titles And Identification Of Parties
F 2305.1 Inst 1 Defense: Momentary 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 2305.1 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 2305.2Defense: Momentary Possession Of Controlled Substance—Instructions
F 2305.2 Inst 1 Momentary Possession Of Controlled Substance: Clarification Of Language
*Modify CC 2305, paragraph 1, as follows [added language is underlined; deleted language is stricken]:
Even if you conclude find beyond a reasonable doubt that the defendant possessed __________ <insert name of controlled substance>, that possession was not illegal you must still find (him/her) not guilty if the defendant can prove the defense of momentary or transitory possession. In order To establish this defense, the defendant must prove that:
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Duty To Find Defendant Not Guilty—CC 2305 does not expressly instruct the jury to find the defendant not guilt if the defendant proves momentary possession.
Deletion Of “In Order” Terminology—The term “in order” is unnecessary surplusage.
F 2305.2 Inst 2 Preponderance Is A “Lesser” Standard Than Proof Beyond A Reasonable Doubt
*Modify CC 2305, paragraph 2, sentence 2, as follows [added language is underlined; deleted language is stricken]:
This is a different lesser standard of proof than proof beyond a reasonable doubt.
Points and Authorities
See FORECITE F 418.4 Inst 5.
F 2305.2 Inst 3 Defendant’s Burden As To Affirmative Defense Does Not Change Prosecution’s Burden To Prove All Elements Beyond A Reasonable Doubt
*Add to CC 2305, paragraph 2, as follows:
The defendant’s burden as to this defense does not in any way relieve the prosecution of its burden to prove every element of the charge beyond a reasonable doubt.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Need For Instruction—Without express instruction to the contrary, the jurors may not consider evidence offered in support of an affirmative defense in deciding whether the prosecution has proven guilt beyond a reasonable doubt. (See generally Martin v. Ohio (1987) 480 US 228, 234 [94 LEd2d 267; 107 SCt 1098].)
[See also FORECITE F 105.2 Inst 1; F 2305.2 Inst 4.]
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]
FORECITE CG 4.4 [Jury Must Consider Affirmative Defense Evidence As To Whether Prosecution Has Proven All Elements Of The Offense]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 2305.2 Inst 4 (a & b) Momentary Possession: Even If Defense Not Proven; Prosecution Must Still Prove Elements Of Charge And Jury Must Consider Evidence Of Momentary Possession As To The Elements
*Add to CC 2305:
Alternative a
Even if the defendant does not prove momentary possession, the prosecution must still prove every element of the charge beyond a reasonable doubt.
In considering whether the prosecution has met its burden to prove every element beyond a reasonable doubt, consider all the evidence, including that which relates to the defense of momentary possession, even if you conclude that the defendant did not prove the defense.
Alternative b:
Even if you conclude that the defendant did not prove the defense of momentary or transitory possession, consider any evidence regarding that defense in attempting to decide whether the prosecution has proved beyond a reasonable doubt that the defendant ________________ <e.g., knew the substance’s nature or character as a controlled substance>.
[Source: cf., Criminal Jury Instructions For The District Of Columbia 4.61 [Consent Defense to Sexual Abuse], ¶, sent. 3 (Bar Association of the District of Columbia, 4th ed. 1993).]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Jurors’ Duty To Consider Evidence—See FORECITE F 105.2 Inst 1.
Evidence Relating To Rejected Affirmative Defense May Still Be Relevant To Whether All Elements Of The Charged Offense Have Been Proved—Evidence offered in support of a momentary possession defense might also be relevant to the core elements of the possession charge. For example, evidence that the defendant only had the substance momentarily might also support a defense theory that the defendant did not know the nature and character of the substance.
However, without a clarifying instruction there is a danger that the jurors will not consider the affirmative defense evidence as to whether the prosecution has met its burden.
Martin v. Ohio (1987) 480 US 228 [94 LEd2d 267; 107 SCt 1098] held that the burden of proving a defense by a preponderance of the evidence may be placed on the defendant; however, in so holding, the Court stressed the need for the jury to understand (1) that the burden to prove the elements of the charge remains with the prosecution and (2) evidence relating to the affirmative defense must be considered by the jury if it does not satisfy the preponderance standard:
“It would be quite different if the jury had been instructed that self-defense evidence could not be considered in determining whether there was a reasonable doubt about the State’s case, i.e., that self-defense evidence must be put aside for all purposes unless it satisfied the preponderance standard. Such instruction would relieve the State of its burden and plainly run afoul of Winship‘s mandate. The instructions in this case could be clearer in this respect, but when read as a whole, we think they are adequate to convey to the jury that all of the evidence, including the evidence going to self-defense, must be considered in deciding whether there was a reasonable doubt about the sufficiency of the State’s proof of the elements of the crime.”
(Martin v. Ohio, 480 US at 233-4.)
Justice Powell recognized this reasoning to be the “crux of the Court’s holding” (see Smart v. Leeke (4th Cir. 1989) 873 F2d 1558, 1564) when he articulated in his dissent: “The Court thus seem[ed] to conclude that as long as the jury is told that the State has the burden of proving all elements of the crime, the overlap between the offense and the defense is immaterial.” (Martin, 480 US at 239.)
In response to Martin‘s recognition of potential juror confusion in this area, it has been suggested that clarifying instructions should be given to assure jury understanding of these important principles. (See e.g., Montana Criminal Jury Instructions (1990 Ed.) MCJI 3-115(a) [jury instructed that “even if you determine the use of force was not justified, the state still has the duty to prove each of the elements of the crime charged beyond a reasonable doubt”]; Criminal Jury Instructions for the District of Columbia (4th Ed., 1996) 4.60, ¶ 1, sentence 3 [jury told to consider evidence of consent [an affirmative defense] in deciding whether prosecution proved the force or threat element].
The First Circuit commentary to its standard insanity instruction (First Circuit Pattern Jury Instructions: Criminal (1998) 5.07 fn 3) further illustrates the problem:
“A more troublesome issue arises when the defendant raises both the insanity defense and a mens rea defense based on abnormal mental condition. If evidence tends to show that a defendant failed to understand the nature and quality of his/her conduct, that evidence will not only tend to help prove an insanity defense but it will also typically tend to raise reasonable doubt about the requisite culpable state of mind. (See Pattern Instruction 5.02.) In Martin v. Ohio (1987) 480 US 228, 234, the Supreme Court held that the trial judge must adequately convey to the jury that evidence supporting an affirmative defense may also be considered, where relevant, to raise reasonable doubt as to the requisite state of mind. This overlap problem may be solved by adequate instructions.” (Id.)
The need for clarifying instructions is particularly acute in circumstances where the affirmative defense would also serve to negate an element of the charge. (E.g., diminished capacity is affirmative defense which defendant must prove but prosecution must prove mens rea beyond an reasonable.) As one court observed:
“In this kind of situation, the constitutional problem is not eliminated by including an instruction in the charge that the state has the ultimate burden of proving every element of the offense beyond a reasonable doubt. When such a standard instruction is coupled with one placing a burden on the defendant to prove his defense by a preponderance of the evidence, the predictable result is more than merely confusion. In order to attribute some significance to the defendants’ burden, a rational juror’s only option is to conclude that the defendants’ evidence concerning the subject matter of the “affirmative defense” is to be considered only if the jury finds it persuasive, i.e., finds that the facts sought to be proved are more likely true than not true. It is clear from Martin that this is constitutionally impermissible.”
(Emphasis added.) (Humanik v. Beyer (3rd Cir. 1989) 871 F2d 432, 441.)
Moreover, the problem also exists when the defense does not directly negate the element. For example, in the case of momentary possession, as discussed in FORECITE F 2305.2 Inst 4, evidence related to momentary possession may actually negate the element of possession as a required element of the charge. Hence, any implication that the momentary possession evidence may only be considered if proven by a preponderance of the evidence would violate the due process and trial by jury clauses of the federal constitution.
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]
FORECITE CG 4.4 [Jury Must Consider Affirmative Defense Evidence As To Whether Prosecution Has Proven All Elements Of The Offense]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
STRATEGY NOTE—Depending on the case, the instructions in Alternative a above may be undesirable as a matter of strategy because they may be viewed as suggesting to the jury a weakness in the defendant’s affirmative defense evidence. Alternatively, the jury could simply be instructed in the language of Alternative b above.
NOTE: Applicability To Entrapment—A similar analysis could be applied to entrapment where the defendant’s lack of predisposition to commit the offense in the first place could be relied upon to negate the mens rea and/or intent elements of the charge, even if entrapment is not proven by a preponderance of the evidence.
CALJIC NOTE: See FORECITE F 12.06c/F 4.000a.
