SERIES 2300 CONTROLLED SUBSTANCES
F 2330 Manufacturing A Controlled Substance (HS 11379.6(a) & (b), HS 11054–11058)
TABLE OF CONTENTS
F 2330.1 Titles And Identification Of Parties
F 2330.1 Inst 1 Manufacturing A Controlled Substance—Title
F 2330.1 Inst 2 Identification Of Prosecution And Defendant
F 2330.2 Manufacturing A Controlled Substance—Tailoring To Facts: Persons, Places, Things And Theories
F 2330.2 Inst 1 Include Definition In Elements; Tailor To Facts
F 2330.2 Inst 2 Manufacturing A Chemical Not Itself A Controlled Substance: Tailor To Facts
F 2330.3 Manufacturing A Controlled Substance—Language That Is Argumentative, Confusing, Etc.
F 2330.3 Inst 1 Deletion Of Argumentative Language
F 2330.4 Manufacturing A Controlled Substance—Burden Of Proof Issues
F 2330.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 2330.5 Manufacturing A Controlled Substance—Elements And Definitions
F 2330.5 Inst 1 Separate Enumeration Of Combined Elements
F 2330.5 Inst 2 Knowledge Of What Was Being Manufactured As An Element (HS 11379.6; HS 11383)
F 2330.5 Inst 3 No Requirement That Manufacturing Begin With Innocuous Chemical
F 2330.5 Inst 4 Knowledge Of Controlled Substance Being Manufactured
F 2330.6 Manufacturing A Controlled Substance—Defense Theories
F 2330.6 Inst 1 Sale Or Transportation Of Drugs: Knowledge Requirement (HS 11352 & HS 11379)
F 2330.6 Inst 2 (a & b) Pinpoint Instruction—Drug Manufacturing: Assembly Or Creation Process Must Have Begun
F 2330.7 Manufacturing A Controlled Substance—Preliminary Fact Issues [Reserved]
F 2330.8 Manufacturing A Controlled Substance—Unanimity/Duplicity/Multiplicity [Reserved]
F 2330.9 Manufacturing A Controlled Substance—Lesser Offense Issues [Reserved]
Return to Series 2300 Table of Contents.
F 2330.1 Titles And Identification Of Parties
F 2330.1 Inst 1 Manufacturing A Controlled Substance—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 2330.1 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 2330.2Manufacturing A Controlled Substance—Tailoring To Facts: Persons, Places, Things And Theories
F 2330.2 Inst 1 Include Definition In Elements; Tailor To Facts
See FORECITE F 2300.2 Inst 1.
F 2330.2 Inst 2 Manufacturing A Chemical Not Itself A Controlled Substance: Tailor To Facts
*Modify CC 2330 [if prosecution alleges manufacture of chemical not itself a controlled substance] as follows:
[Delete paragraph 5, sentence 1 and 2 as argumentative and duplicative.]
*Modify Element 1 as follows [added language is underlined; deleted language is stricken]::
1. The defendant (manufactured/compounded/converted/produced/derived/ processed/ prepared) a controlled substance, specifically __________ <insert controlled substance name of chemical >,;
2. (He/She) did so using chemical extraction or independent chemical synthesis;
*Modify Element 2 as follows:
2 3. The defendant knew of the substance’s nature or character as a controlled substance that the _______________ <name of chemical> was going to be used in the manufacture of _______________ <name of controlled substance>.
Points and Authorities
Tailoring To Facts: Prosecution Theory—When the prosecution’s theory is based on manufacture of a chemical not itself a controlled substance that theory should be specified in the enumerated elements. (See FORECITE F 400.2 Inst 1.)
“Engaged In”As Imprecise Terminology—The above modification eliminates the imprecise “engaged in” terminology of CC 2330, paragraph 5, Element 1. (See FORECITE F 1120.5 Inst 1.)
F 2330.3 Manufacturing A Controlled Substance—Language That Is Argumentative, Confusing, Etc.
F 2330.3 Inst 1 Deletion Of Argumentative Language
*Modify CC 2330, paragraph 5, as follows [added language is underlined; deleted language is stricken]:
[The People do not need to prove that the defendant completed the process of manufacturing or producing a controlled substance. Rather, The People must prove that the defendant knowingly participated in the beginning or intermediate steps to process or make a controlled substance. [Thus, the defendant is guilty of this crime if the People have proved that:
1 A. The defendant engaged in the synthesis, processing, or preparation of a chemical that is not itself a controlled substance;
AND
2 B. The defendant knew that the chemical was going to be used in the manufacture of a controlled substance.]
Points and Authorities
See FORECITE F 416.3 Inst 4.
F 2330.4 Manufacturing A Controlled Substance—Burden Of Proof Issues
F 2330.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 2330.5 Manufacturing A Controlled Substance—Elements And Definitions
F 2330.5 Inst 1 Separate Enumeration Of Combined Elements
*Modify CC 2330, Elements, as follows [added language is underlined; deleted language is stricken]:
1. The defendant (manufactured/compounded/converted/produced/derived/ processed/prepared) a controlled substance, specifically __________ <insert controlled substance>, ;
2. (He/She) did so using chemical extraction or independent chemical synthesis either directly or indirectly;
AND
2 3. The defendant knew of the substance’s nature or character as a controlled substance.
[Delete 3rd & 5th paragraphs.]
Points and Authorities
See FORECITE F 3500.2 Inst 1.
F 2330.5 Inst 2 Knowledge Of What Was Being Manufactured As An Element (HS 11379.6; HS 11383)
*Add to CC 2330:
3. The defendant knew _______________ <name of controlled substance> was being manufactured.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Duty To Instruct On All Elements—See FORECITE F 103.2 Inst 1.
Knowledge Of What Was Being Manufactured As An Element—In People v. Telfer (1991) 233 CA3d 1194, 1204, the court held that knowledge of the narcotic nature of the substance is not an element of the crime of manufacturing under HS 11379.6. However in People v. Coria (1999) 21 C4th 868, the Supreme Court disapproved Telfer, and held that “it would be anomalous to permit [the defendant] to be convicted of manufacturing methamphetamine if he did not know methamphetamine was being manufactured, when, absent knowledge of the character of the substance, he could not be convicted of possessing the contraband resulting from the manufacturing process.” (Coria, 21 C4th at 874; see also People v. Pierson (2001) 86 CA4th 983 [prosecution must prove defendant knew methamphetamine was being manufactured and failure to instruct on that element was error].) Accordingly, CJ 12.09.1, .2, .3 and .4, should be modified to include a requirement that the defendant knew that a specific controlled substance is being manufactured.
Moreover, the United States Supreme Court has emphasized that felony offenses which bear harsh punishment are not the type of “public welfare” offenses for which courts will readily dispense with the mens rea requirement when construing a statute. (Staples v. U.S. (1994) 511 US 600 [128 LEd2d 608, 623-624; 114 SCt 1793]; People v. Simon (1995) 9 C4th 493, 520.) Telfer comes from a pre-Simon generation of Supreme Court opinions in which courts often decided for themselves that a statute was “public welfare” and therefore had no mens rea. Another such case was the one Simon overruled, People v. Johnson (1989) 213 CA3d 1369. Hence, in the absence of express legislative language to the contrary, for crimes which impose severe punishment, “the usual presumption [regarding legislative intent] that a defendant must know the facts that make his conduct illegal should apply.” (Staples v. U.S., supra, 128 LEd2d at 624; United States v. United States Gypsum Co. (1978) 438 US 422, 442 fn 18 [57 LEd2d 854; 98 SCt 2864]; People v. Casey (1995) 41 CA4th Supp. 1, 6-7; see also FORECITE F 1.20a, F 3.30a, F 12.40a and CHK IV(L).)
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.
CALJIC NOTE: See FORECITE F 12.09.1b.
F 2330.5 Inst 3 No Requirement That Manufacturing Begin With Innocuous Chemical
*Modify CC 2330, 5th paragraph and Items 1 and 2 below as follows [deleted language is stricken]:
[Thus, the defendant is guilty of this crime if the People have proved that:
1. The defendant engaged in the synthesis, processing, or preparation of a chemical that is not itself a controlled substance;
AND
2. The defendant knew that the chemical was going to be used in the manufacture of a controlled substance.]]
Points and Authorities
HS 11379.6(a) does not require either a chemical change as a result of the manufacturing process or evidence he started with a substance which was not itself a controlled substance: “CALCRIM No. 2330 states an element of a manufacturing offense under section 11379.6(a) is that the “defendant engaged in the synthesis, processing, or preparation of a chemical that is not itself a controlled substance … .” (Italics added.) The quoted language in CALCRIM No. 2330, on which Bergen relies, may well be appropriate in prosecutions for manufacturing methamphetamine. [Citations.] However, this language in CALCRIM No. 2330 appears nowhere in section 11379.6(a). Section 11379.6(a) does not require that the manufacture of a controlled substance begin with an otherwise innocuous or noncontrolled substance as an element of the offense. It punishes the use of chemicals as part of the process of producing a controlled substance.” (People v. Bergen (2008) 166 CA4th 161, 173.)
F 2330.5 Inst 4 Knowledge Of Controlled Substance Being Manufactured
See FORECITE F 2331.5 Inst 1.
F 2330.6 Manufacturing A Controlled Substance—Defense Theories
F 2330.6 Inst 1 Sale Or Transportation Of Drugs: Knowledge Requirement (HS 11352 & HS 11379)
See FORECITE F 2300.6 Inst 3.
F 2330.6 Inst 2(a & b) Pinpoint Instruction—Drug Manufacturing: Assembly Or Creation Process Must Have Begun
*Add to CC 2330 as follows:
Alternative a [CC 3400 Format]:
The prosecution must prove every element of the drug manufacturing charge alleged against the defendant. The defendant contends (he/she) did not commit the crime of drug manufacturing and that the process of converting the raw chemicals into _______________ <name of controlled substance> had not begun. The prosecution must prove that the manufacturing process had begun and that the defendant is guilty of the alleged crime. The defendant does not need to prove that the manufacturing process had not begun [or any other defense theory]. If you have a reasonable doubt about whether the manufacturing process had begun [or any other element of the offense alleged], you must find (him/her) not guilty.
Alternative b:
The defendant may not be convicted of manufacturing __________ <insert name of controlled substance> unless the process of converting the raw chemicals into the controlled substance had begun. Mere possession of the raw chemicals, without more, is insufficient to convict.
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.
Conversion Process Must Have Begun; Possession Of Raw Chemicals Not Sufficient—HS 11379.6 imposes criminal liability upon a person “who manufactures, compounds, converts, produces, derives, processes or prepares, either directly or indirectly by chemical extraction or independently by means of chemical synthesis, any controlled substance …” Hence, the evil sought to be eradicated by this section is the process of making the drug. Once that process has begun, the defendant may be convicted even though a “finished product” was never produced. (See People v. Jackson (1990) 218 CA3d 1493, 1500-04.) “The on-going and progressive making, assembly or creation of PCP … may, but does not necessarily … include the culmination of the manufacturing process, the finished PCP …” [¶] … [T]he conduct proscribed by H&S 11379.6 encompasses the initial and intermediate steps carried out to manufacture, produce or process PCP. [The section] is violated if the manufacturing, producing or processing of PCP is ‘occurring,’ ‘taking place,’ and in the course of its progress.” (Id. at 1503-04; emphasis added.)
Accordingly, mere possession of the raw materials necessary to manufacture the drug is insufficient to convict, even if the defendant fully intended to convert the raw materials into the finished product.
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.
NOTES
This issue was addressed in a depublished opinion. (People v. Rowe DEPUBLISHED (1990) 219 CA3d 1589.) In Rowe, the defendant was in possession of the chemicals necessary to make methamphetamine but had not begun the process of converting the chemicals to the finished product. The Rowe court held that the evidence was insufficient to support a conviction for manufacturing under HS 11379.6. [See Opinion Bank # O-150for a copy of the Rowe opinion.]
Presumably, if the jury found the possession to constitute an overt act toward the accomplishment of the manufacture of the drug the defendant could be convicted of attempted manufacturing. (See FORECITE LIO II re: Attempts.)
CALJIC NOTE: See FORECITE F 12.09.1a.
F 2330.7 Manufacturing A Controlled Substance—Preliminary Fact Issues [Reserved]
F 2330.8 Manufacturing A Controlled Substance—Unanimity/Duplicity/Multiplicity[Reserved]
F 2330.9 Manufacturing A Controlled Substance—Lesser Offense Issues [Reserved]
