All posts by jpadmin

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Destructive Device: Definition Not Required

People v. Adams (2009) 170 Cal App. 4th 893, held that a court has no sua sponte duty to define “destructive device” beyond the definition provided in PC 16460(a)(5). The Court of Appeal affirmed a conviction for offering to sell a destructive device where the trial court used CC 2575, an instruction identical to CC 2570 used for the more common crime of possession of a destructive device.

 

The reviewing court rejected the defense argument that the court had a sua sponte duty to define “breakable” because, “[t]he term ‘breakable’ is not a technical term; persons of common intelligence know what ‘breakable’ means.” The Court of Appeal approved giving the jury the definition of “destructive device” derived from PC 16460 in conjunction with CC 2575.

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Defense Theory: BAC of Less than 0.05% Warrants Rebuttal Presumption That Defendant Was Not Under the Influence

VC § 23610(a)(1), provides “[i]f there was at that time less than 0.05 percent, by weight, of alcohol in the person’s blood, it shall be presumed that the person was not under the influence of an alcoholic beverage at the time of the alleged offense.” Thus, there is a statutory presumption that a defendant was not under the influence of alcohol at the time of the driving if the defense shows that the defendant’s blood alcohol level at that time was less than 0.05%. Since CC 2111 includes the presumption that the defendant was driving under the influence of alcohol if the prosecution shows that the defendant was driving at or above 0.08% blood alcohol, reciprocity and simple fairness call for the defense to receive a jury instruction that the defendant is presumed not to have been under the influence of alcohol if the defense shows that the blood alcohol reading was less than 0.05%.

 

If the defense has proved by a preponderance of the evidence that a sample of the defendant’s (blood/breath) was taken within three hours of the defendant’s [alleged] driving and that a chemical analysis of the sample showed a blood alcohol level of less than 0.05 percent, you may, but are not required to, conclude that the defendant was not under the influence of an alcoholic beverage at the time of the alleged offense.

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MMPA Is Broader than CUA

The instruction in People v. London was found to be inadequate because it was based solely on the Compassionate Use Act (“CUA”) and did not comport with provisions of the Medical Marijuana Program Act (“MMPA”). (People v. London (2014) 228 Cal. App. 4th 544, 564.) The CUA allows a patient and his or her primary care giver to grow or possess marijuana solely for the patient’s medical purposes, and for no other persons or groups of persons. (Ibid.) However, the MMPA is broader and its Guidelines allow marijuana grown through a nonprofit collective or cooperative to be “allocated based on fees that are reasonably calculated to cover overhead costs and operating expenses,” even if the defendant is not the primary care giver of other members of the collective. (H&S § 11362.775, Guidelines, § IV B6, p. 10.) Accordingly, when a defendant asserts a medical marijuana defense to cultivating marijuana, it is important that the court give a defense instruction that covers both the CUA and MMPA. The court should provide an instruction that clearly provides that the defendant may receive reimbursement for out-of-pocket costs incurred in cultivating the marijuana and the reasonable value of the cultivation services provided. (People v. London, supra, 228 Cal. App. 4th at 566.)

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Small Amount of Controlled Substance Relevant to Knowledge

CC 2376 defines usable amount as an amount in a quantity sufficient to be used as a controlled substance, claiming that there is no requirement that the amount be enough to affect the user. However, the California Supreme Court has made it clear that a very small amount of a controlled substance is relevant to the element of knowledge: “. . .the form, not the purity, of the substance, is most pertinent to the question of knowledge. But purity may in some cases also be relevant. If, for example, the substance was found in a package of talcum powder, testimony that it contained only a microscopic amount of cocaine might be relevant to defendant’s knowledge of the presence of the contraband.” (People v. Rubalcava (1993) 6 Cal. 4th 62.)

 

Thus, the jury should be told that a small amount of the controlled substance may show that the defendant lacked knowledge that contraband was present:

 

The lack of the defendant’s knowledge of the presence of a controlled substance may be shown by the fact that the amount of the controlled substance suggests that the defendant was unaware of the presence of the controlled substance.

 

So long as there is substantial evidence supporting a defense such as the Compassionate Use defense, on request of the defense the court must give an instruction on that defense. (People v. Panah (2005) 35 Cal. 4th 395, 484.)

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Marijuana Distribution: Minimal Movement as Defense Theory

CC 2361 defines the term “transports” as carrying or moving an item from one location to another, even if the distance is short. However, minimal movement that does not facilitate use or trafficking does not qualify as transportation. The requirement of volitional transport of methamphetamine from one location to another avoids any unwarranted extension of the statute to restrained, minimal movement within a residence or other confined area that does not facilitate trafficking, distribution, or personal use of drugs. The jury should be instructed:

 

However, minimal movements within a residence or other confined areas that do not facilitate trafficking, distribution, or personal use of drugs is not enough to qualify a transportation.

                                                           

So long as there is substantial evidence supporting a defense theory, the judge must, if requested, instruct upon that theory. (People v. Panah (2005) 35 Cal. 4th 395, 484.)

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Gun Enhancement: Pinpoint Instruction where Defendant is not Present when Gun and Drugs are Discovered

CC 3131 (Related Issues)  suggests the use of a pinpoint instruction in the situation where the underlying felony is possession of narcotics and the defendant is not present at the time the drugs and firearm are recovered. The instruction is very similar to CJ 17.16.2, the CJ pinpoint instruction on this issue and closely tracks People V. Bland (1995) 30 Cal. 4th 991. In a case involving CC 2303 where the defendant is not present when the drugs and gun are found, the court could also instruct the jury with the pinpoint instruction suggested in CC 3131.

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Failure to Pay Taxes: “Substantial” Deficiency not Required

People v. Mojica (2006)139 Cal. App. 4th 1197, held that an earlier version of CC 2801 erroneously required a “substantial” tax deficiency or a failure to report a “substantial” amount of income. Mojica took issue with the CC requirement that the government must prove the existence of a “substantial” tax deficiency or the failure to report a “substantial” amount of income, finding that the authority cited by CC for this proposition was no longer good law.

 

The CC Committee subsequent to Mojica, modified CC 2801 to delete the “substantial” requirements and to cite in its Authority section People v. Mojica (2006) 139 Cal. App. 4th 1197, 1204, as authority.