Return to CALJIC Part 9-12 – Contents
F 12.01 n1 Possession For Sale: Intoxication Or Mental Impairment As Defense To Knowledge (HS 11350 & HS 11377).
Knowledge of both the presence and nature of the controlled substance are requisite elements of a drug possession charge. (See CJ 12.00 and authorities cited therein; and CJ 1.24.)
In People v. Reyes (97) 52 CA4th 975 [61 CR2d 39], the court noted that “[a] general intent crime may also involve a specific mental state, such as knowledge.” (52 CA4th at 983.) As an example, Reyes relied on People v. Foster (71) 19 CA3d 649 [97 CR 94]. Foster involved a charge of unlawful possession of narcotics. In addition to proving general intent to possess the drug, Foster noted, the prosecution must prove the accused knew the material was a narcotic. (19 CA3d at 655.) In determining this knowledge, Foster said, “[i]ntoxication has obvious relevance to the question of awareness, familiarity, understanding and the ability to recognize and comprehend.” (Ibid.) Hence, when appropriate, the jury should be instructed to consider whether voluntary intoxication negated the required knowledge element for possession offenses such as possession of controlled substances and illegal weapons. (See also FORECITE F 4.21 n4.)
F 12.01 n2 Police Officer Expert: Possession for Sale — Bias Due To Forfeiture
In cases where a police officer “expert” testifies that the defendant possessed drugs for the purposes of sale, the defendant may wish to request an instruction informing the jury that if the defendant is convicted of possession for sale, his/her property may be forfeited and over 75% of the proceeds may go to the local police agency which participated in the seizure. (H&S Code § 11489(b)(2).) Such an instruction is warranted because the police officer may have a bias or motive in seeing that the defendant is convicted of possession for sale as opposed to simple possession which does not result in forfeiture. (See People v. Cardwell UNPUBLISHED (F014847).) [A copy of this opinion is available to FORECITE subscribers. Ask for Opinion Bank # O-105.]
RESEARCH NOTES: See Annotation, Admissibility, in criminal prosecution, of expert opinion allegedly stating whether drugs were possessed with intent to distribute — state cases, 83 ALR4th 629 and Later Case Service.
F 12.01 n3 Possession For Sale: Usable Quantity (HS 11350 & HS 11377).
[See FORECITE F 12.00 n6.]
F 12.01 n4 Possession For Sale: Defendant Permitted To Comment on Lack of Fingerprint Evidence (HS 11350 & HS 11377).
[See FORECITE F 1.24 n6.]
F 12.01 n5 Possession For Sale: Duty to Define “Right To Control” (HS 11350 & HS 11377).
[See FORECITE F 1.24 n5.]
F 12.01 n6 Challenging The Distinction Between Cocaine And Cocaine Base On Equal Protection And Former Jeopardy Grounds (HS 11351.5) (HS 11350 & HS 11377).
In People v. Howell (90) 226 CA3 254, 260-61 [276 CR 454], the court held that although cocaine hydrochloride and cocaine base are both cocaine, cocaine hydrochloride is a different substance from cocaine base.
However, a successful challenge to the distinction between cocaine and cocaine base was made in the Atlanta U.S. District Court. In U.S. v. Davis (94) 864 F Supp 1303, counsel argued that there is no scientific difference between cocaine and cocaine base. In that case, the judge granted an evidentiary hearing wherein chemists and pharmacologists hired by the defense, prosecution and court all agreed on one critical point: ‘cocaine base’ is synonymous with ‘cocaine.’ The court agreed with the defense and held that the heightened penalty provision for cocaine base should be ignored. (But see U.S. v. Byse (11th Cir. 1994) 28 F3d 1165; U.S. v. Armstrong (96) 517 US 456 [134 LEd2d 687; 116 SCt 1480] [insufficient showing of selective prosecution].)
In California, the penalty for a violation of HS 11351 (possession of cocaine for sale) is two, three or four years in prison. The penalty for a violation of HS 11351.5 (possession of cocaine base for sale) is three, four or five years in prison. If cocaine is synonymous with “cocaine base” then the heightened penalty required by HS 11351.5 may be challenged on former jeopardy and equal protection grounds since different penalties may not be imposed for the same crime. (See People v. Henderson (63) 60 C2d 482, 496-97 [35 CR 77]; People v. Lewis (39) 13 C2d 280, 282 [89 P2d 388]; In re Ambrosewf (1895) 109 C 264, 265 [41 P 1101].) Other statutes which specifically refer to cocaine base include HS 11351, HS 11351.5, HS 11352, HS 11353, HS 11353.5, HS 11353.6, HS 11353.7, HS 11354, HS 11355, HS 11364, HS 11365, HS 11366, HS 11366.5, HS 11366.6, HS 11369, HS 11370, HS 11370.1, HS 11370.2, HS11370.4, HS 11371, HS 11372, PC 1203.07, PC 1203.073.
F 12.01 n7 Possession For Sale: Sufficiency Of Evidence Of Intent.
(See FORECITE F 12.01a.)
F 12.01 n8 Possession For Sale: Simple possession as lesser included.
It is an established principle that simple possession is necessarily included in possession for sale of a controlled substance. (See People v. Clay (69) 273 CA2d 279, 284-85 [78 CR 56]; see also FORECITE LIO CHK VI(C).)
F 12.01 n9 Controlled Substance In HS 11054(f) Need Not Have A Stimulant Effect.
(See FORECITE F 12.00 n11.)
F 12.01 n10 Drug Sales.
(See FORECITE F 6.10i [Drug Conspiracy Cases: Buyer-Seller Instruction].)
F 12.01 n11 Possession For Sale: Expert Testimony Regarding Structure Of Drug Trafficking Organizations When No Conspiracy Charged.
See U.S. v. McGowan (9th Cir. 2001) 274 F3d 1251 [expert testimony regarding structure of drug trafficking organizations inadmissible when no conspiracy or other connection with drug trafficking organization is alleged]; see also U.S. v. Vallejo (9th Cir. 2001) 237 F3d 1008; U.S. v. Varela-Rivera (9th Cir. 2002) 279 F3d 1174 [court erred in admitting expert testimony regarding modus operandi of drug trafficking enterprises and drug courier fees where defendant was not charged with conspiracy to distribute drugs]; U.S. v. Pineda-Torres (9th Cir. 2002) 287 F3d 860. But see FORECITE F 1.24 n6, CAVEAT.
Knowledge Of Sale Insufficient To Establish Intent To Sell
(HS 11351, HS 11351.5, HS 11378, HS 11378.5)
*Add to CJ 12.01 when appropriate:
The defendant’s knowledge that the drugs would eventually be sold by another party is not sufficient to find a specific intent to sell. The defendant must actually intend for the drugs to be sold, not merely have knowledge of their sale.
Points and Authorities
In re Christopher B. (90) 219 CA3d 455, 466 [268 CR 8] held that a conviction of possession for sale may not be based upon a finding that the defendant knew the drugs would eventually be sold; specific intent to sell is required. (See also People v. Newman (71) 5 C3d 48, 53-54 [95 CR 12]; People v. Glass (75) 44 CA3d 772, 774 [118 CR 797]; People v. Consuegra (94) 26 CA4th 1726, 1732 [32 CR2d 288].)
People v. Parra (99) 70 CA4th 222 [82 CR2d 541] held that HS 11351 does not require that the defendant have the specific intent to sell the controlled substance personally, only that it be “for sale,” and concluded that in order to be convicted of HS 11351 the defendant needs to either (1) have the specific intent to sell the controlled substance personally, or (2) have the specific intent that someone else will sell the controlled substance. “We find no meaningful distinction in culpability between the defendant who actually sells the controlled substance and the defendant who transports it with the specific intent that someone else will sell it, as they both share in the specific intent to sell.” (Parra, 70 CA4th 227.)
Christopher B. did not determine whether the perpetrator must intend to sell the drugs personally. However, Consuegra concluded that the requisite mental state “is satisfied when the drugs are possessed with the specific intent that they be sold, regardless of whether the possessor intends to sell them personally. (Consuegra 26 CA4th at 1732, fn 4.)
RESEARCH NOTES: See Annotation, Sufficiency of evidence possessor of controlled substance other than cocaine, heroin, or marijuana had intent to distribute it, so as to violate 21 USCS §841(a)(1), 80 ALR Fed 507 and Later Case Service; Annotation, Sufficiency of evidence that possessor of marijuana had intent to distribute so as to violate 21 USC §841(a)(1), 79 ALR Fed 113; Annotation, Sufficiency of evidence the possessor of heroin had intent to distribute it so as to violate 21 USC §841(a)(1), 78 ALR Fed 413 and Later Case Service.]
Possession For Sale:
Requirement That Defendant Personally Intend To Sell In Joint Access Cases
*Modify F 12.01 as follows [added language is capitalized; deleted language is between << >>]:
In order to prove this crime, each of the following elements must be proved:
1. <<A person>> __________(NAME OF DEFENDANT) [exercised control over or the right to control] [or] [purchased from another], an amount of _____(controlled substance), a controlled substance.
2. <<That person>> __________(NAME OF DEFENDANT) knew of its presence;
3. <<That person>> __________(NAME OF DEFENDANT) knew of its nature as a controlled substance;
4. The substance was in an amount sufficient to be used for sale or consumption as a controlled substance; and
5. <<That person>> __________(NAME OF DEFENDANT) [possessed] [or] [purchased] the controlled substance with the specific intent to sell the same.
Points and Authorities
It is axiomatic that the prosecution must prove every element of the charged offense as to the defendant. (See FORECITE F 2.90i; Jackson v. Virginia (79) 443 US 307 [61 LEd2d 560; 99 SCt 2781]; Sullivan v. Louisiana (93) 508 US 275 [124 LEd2d 182; 113 SCt 2078].) In a case involving joint possession or access to a controlled substance, there is a danger that CJ 12.01 will allow the jury to convict the defendant without finding the necessary element of intent to sell. This is so because CJ 12.01 uses the terms “a person” or “that person” in setting forth the elements of the charge. Under this language, the jury could find the requisite intent based upon the intent of another person other than the defendant. Accordingly, CJ 12.01 should be modified as set forth above.
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
[See Brief Bank # B-802 for additional briefing on this issue.]