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SERIES 2300 CONTROLLED SUBSTANCES

F 2352 Possession For Sale Of Marijuana (HS 11359, HS 11018)

TABLE OF CONTENTS
F 2352.1 Titles And Identification Of Parties
F 2352.1 Inst 1 Possession For Sale Of Marijuana—Title
F 2352.1 Inst 2 Identification Of Prosecution And Defendant

F 2352.2 Possession For Sale Of Marijuana—Tailoring To Facts: Persons, Places, Things And Theories
F 2352.2 Inst 1 Include Definition In Elements; Tailor To Facts

F 2352.3 Possession For Sale Of Marijuana—Language That Is Argumentative, Confusing, Etc. [Reserved]

F 2352.4 Possession For Sale Of Marijuana—Burden Of Proof Issues
F 2352.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 2352.4 Inst 2 (a & b) Agreement To Buy Does Not Prove Possession Based On Either Actual Control Or Right To Control

F 2352.5 Possession For Sale Of Marijuana—Elements And Definitions
F 2352.5 Inst 1 (a & b) Possession As Element
F 2352.5 Inst 2 Include Definition Of Selling In Intent To Sell Element

F 2352.6 Possession For Sale Of Marijuana—Defense Theories
F 2352.6 Inst 1 Possession: Pinpoint Instruction On Defense Theory
F 2352.6 Inst 2 Pinpoint And Tailoring: Agreeing To Buy Does Not Prove Possession
F 2352.6 Inst 3 Pinpoint: Knowledge Of Sale Insufficient To Establish Intent To Sell (HS 11351, HS 11351.5, HS 11378, HS 11378.5)
F 2352.6 Inst 4 Usable Amount: Pinpoint Instruction
F 2352.6 Inst 5 Sale Or Transportation Of Drugs: Knowledge Requirement

F 2352.7 Possession For Sale Of Marijuana—Preliminary Fact Issues [Reserved]

F 2352.8 Possession For Sale Of Marijuana—Unanimity/Duplicity/Multiplicity [Reserved]

F 2352.9 Possession For Sale Of Marijuana—Lesser Offense Issues [Reserved]

F 2352 Notes
F 2352 Note 1 Possession For Sale Of Marijuana—CALCRIM Cross-References And Research Notes
F 2352 Note 2 Police Officer Expert: Possession for Sale—Bias Due To Forfeiture
F 2352 Note 3 Possession For Sale: Defendant Permitted To Comment on Lack of Fingerprint Evidence
F 2352 Note 4 Possession For Sale: Expert Testimony Regarding Structure Of Drug Trafficking Organizations When No Conspiracy Charged
F 2352 Note 5 Possession For Sale: Intoxication Or Mental Impairment As Defense To Knowledge

Return to Series 2300 Table of Contents.


F 2352.1 Titles And Identification Of Parties

F 2352.1 Inst 1 Possession For Sale Of Marijuana—Title

See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.


F 2352.1 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 2352.2Possession For Sale Of Marijuana—Tailoring To Facts: Persons, Places, Things And Theories

F 2352.2 Inst 1 Include Definition In Elements; Tailor To Facts

Adapt from FORECITE F 2300.2 Inst 1.


F 2352.3 Possession For Sale Of Marijuana—Language That Is Argumentative, Confusing, Etc.[Reserved]


F 2352.4 Possession For Sale Of Marijuana—Burden Of Proof Issues

F 2352.4 Inst 1 Relating Prosecution Burden To Enumerated Elements

See FORECITE F 400.4 Inst 1.


F 2352.4 Inst 2 (a & b) Agreement To Buy Does Not Prove Possession Based On Either Actual Control Or Right To Control

Alternative a:

*Modify CC 2302, last paragraph, as follows [added language is underlined; deleted language is stricken]:

[Agreeing to buy a controlled substance does not, by itself, mean that a person has control over possession of that substance.]

Alternative b:

[Agreeing to buy a controlled substance does not, by itself, mean that a person has control over or the right to control that substance.]

Points and Authorities

See FORECITE F 2302.6 Inst 3.


F 2352.5 Possession For Sale Of Marijuana—Elements And Definitions

F 2352.5 Inst 1 (a & b) Possession As Element

*Add to CC 2352, Element 1, as follows:

Alternative a:

To prove the defendant possessed the ___________ <item or object alleged to have been possessed>, the prosecution must prove beyond a reasonable doubt that the defendant:

1. Had knowing physical possession of the ___________ <item or object alleged to have been possessed>;

OR

2. By word or act the defendant knowingly [assumed control of] [exercised control over] the ___________ <item or object alleged to have been possessed>.

Alternative b:

A person does not possess an object unless he or she has:

1. Knowing physical possession of the object; or

2. Immediate and knowing control over the object.

Points and Authorities

See FORECITE F 3306 Inst 1.


F 2352.5 Inst 2 Include Definition Of Selling In Intent To Sell Element

*Modify CC 2352, Element 4, as follows [added language is underlined; deleted language is stricken]:

4. When the defendant possessed the controlled substance, (he/she) intended to sell it exchange it for (money/ _______________ <specify service>/_______________ <specify other thing of value>;

[Source: Adapted from CC 2352, paragraph 3.]

Points and Authorities

Include Definition In Element—See FORECITE F 417.5 Inst 2.

Tailor To Facts: Specific Prosecution Theory—See FORECITE F 400.2 Inst 1.


F 2352.6 Possession For Sale Of Marijuana—Defense Theories

F 2352.6 Inst 1 Possession: Pinpoint Instruction On Defense Theory

*Add to CC 2352 [CC 3400 adaption]:

The prosecution must prove the defendant committed the crime of possession of marijuana for sale. The defendant contends (he/she) did not commit (this crime/these crimes) and that _______________ <insert defense theory re: possession, e.g., the marijuana was in the possession of _______________ <name of third party>. The prosecution must prove that the defendant possessed the marijuana and committed the crime[s] with which (he/she) is charged. The defendant does not need to prove that _______________ <insert defense theory>. If you have a reasonable doubt about whether the defendant possessed the marijuana, or about any other essential fact or element necessary to prove the defendant guilty, you must find (him/her) not guilty.

Points and Authorities

See generally, FORECITE F 315.1.2 Inst 2.

NOTE: This instruction is adapted from CALCRIM 3400. However, the last sentence has been augmented in light of the prosecution’s duty to prove all essential facts and elements, even if the defense relies on a specific theory.


F 2352.6 Inst 2 Pinpoint And Tailoring: Agreeing To Buy Does Not Prove Possession

See FORECITE F 2302.6 Inst 3.


F 2352.6 Inst 3 Pinpoint: Knowledge Of Sale Insufficient To Establish Intent To Sell (HS 11351, HS 11351.5, HS 11378, HS 11378.5)

*Add to CC 2352 when appropriate:

The prosecution must prove the defendant intended to sell a controlled substance. The defendant contends that even though (he/she) knew that the drugs would eventually be sold by another party (he/she) did intend to sell the controlled substance.

The prosecution must prove beyond a reasonable doubt that the defendant had the intent to sell and not mere knowledge that the drugs would eventually be sold by another party. The defendant does not need to prove that (he/she) merely had knowledge that the drugs would eventually be sold by another party and did not intend to sell.

If you have a reasonable doubt about whether the defendant intended to sell controlled substance you must find (him/her) not guilty.

Points and Authorities

See FORECITE F 2302.6 Inst 2.


F 2352.6 Inst 4 Usable Amount: Pinpoint Instruction

See FORECITE F 2300.6 Inst 2.


F 2352.6 Inst 5 Sale Or Transportation Of Drugs: Knowledge Requirement

See FORECITE F 2300.6 Inst 3.


F 2352.7 Possession For Sale Of Marijuana—Preliminary Fact Issues [Reserved]


F 2352.8 Possession For Sale Of Marijuana—Unanimity/Duplicity/Multiplicity[Reserved]


F 2352.9 Possession For Sale Of Marijuana—Lesser Offense Issues [Reserved]


F 2352 NOTES

F 2352 Note 1 Possession For Sale Of Marijuana—CALCRIM Cross-References And Research Notes

CALCRIM Cross-References:

See FORECITE F 2300 Notes.

CALCRIM 2350 [Sale, Furnishing, Etc., of Marijuana]
CALCRIM 2351 [Offering to Sell, Furnish, Etc., Marijuana]

Research Notes:

See CLARAWEB Forum, Controlled Substances—Series 2300.


F 2352 Note 2 Police Officer Expert: Possession for Sale—Bias Due To Forfeiture

See FORECITE F 2302 Note 2.


F 2352 Note 3 Possession For Sale: Defendant Permitted To Comment on Lack of Fingerprint Evidence

See FORECITE F 2302 Note 3.


F 2352 Note 4 Possession For Sale: Expert Testimony Regarding Structure Of Drug Trafficking Organizations When No Conspiracy Charged

See FORECITE F 2302 Note 6.


F 2352 Note 5 Possession For Sale: Intoxication Or Mental Impairment As Defense To Knowledge

See FORECITE F 2302 Note 1.

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