Return to CALJIC Part 9-12 – Contents
F 12.02 n1 Sale Of Drugs To Minor: Belief as to Age (HS 11352 & HS 11379).
In a prosecution for sale of a controlled substance to a minor (HS 11353) a mistaken belief that the minor was over the minimum age is not a defense. (People v. Williams (91) 233 CA3d 407, 410-12 [284 CR 454].)
F 12.02 n2 Sale Of Drugs: Conspiracy To Transport (HS 11352 & HS 11379).
In a conspiracy case, where the defendant is not the transporter, the jury must be instructed that the person transporting the drug had knowledge it was being transported and that it was a controlled substance. (People v. Watterson UNPUBLISHED portion (E008121). [See Opinion Bank # O-253 for a copy of the Watterson opinion.]
F 12.02 n3 Sale Of Drugs: Opening Or Maintaining An Unlawful Place To Sell Drugs (HS 11366).
[See FORECITE F 18.14a.]
[RESEARCH NOTES: See Annotation, Validity and construction of state statutes criminalizing the act of permitting real property to be used in connection with illegal drug activities, 24 ALR 5th 428 and later case service.]
F 12.02 n4 Sale Or Transportation Of Drugs: Knowledge Requirement (HS 11352 & HS 11379).
Knowledge of both the presence and nature of the controlled substance are requisite elements of a drug possession charge. (See CJ 12.00 and CJ 1.24.)
People v. Romero (97) 55 CA4th 147, 151 [64 CR2d 16] held that the following instruction was proper in a case where the defendant contended that he mistakenly believed that the substance transported was marijuana rather than cocaine. “Cocaine and marijuana are both controlled substances. It is no defense to the charges of transportation, and possession of cocaine for sale that the defendant believed he possessed marijuana. [¶] If the proof shows the defendant knew he possessed for sale, or transported, a controlled substance but believed it was marijuana, when the substance was actually cocaine, he is not relieved of criminal responsibility by reason of this mistake on his part in identifying the chemical nature of the controlled substances possessed for sale, or transported by him.” This instruction was proper because the knowledge element in narcotics cases only required that the defendant believed that the substance is controlled (see People v. Gory (46) 28 C2d 450, 455-56 [170 P2d 433]; see also People v. Winston (56) 46 C2d 151, 158 [293 P2d 40]). Proof of knowledge of the specific type of controlled substance is not required.
The question of whether intoxication, mental defect, etc. may negate these knowledge elements of drug sale crimes is discussed in FORECITE F 4.21 n4.
(See also FORECITE F 1.24b.)
F 12.02 n5 Transportation of Drugs: Personal Use (HS 11352 & HS 11379).
HS 11379 does not use the word “transport” in a technical sense, and the statute does not exclude transportation which is incidental to personal use. (People v. Eastman (93) 13 CA4th 668, 673-77 [16 CR2d 608], relying on People v. Rogers (71) 5 C3d 129, 136-37 [95 CR 601].)
F 12.02 n6 Sale Of Drugs: Entrapment (HS 11352 & HS 11379).
[See FORECITE F 12.00 n5.]
F 12.02 n7 Selling Or Offering Drugs: Possession Is Not LIO (HS 11352 & HS 11379).
See People v. Peregrina-Larios (94) 22 CA4th 1522, 1524 [28 CR2d 316].
F 12.02 n8 Sale Of Drugs: Definition Of Administer (HS 11352 & HS 11379).
The term “administer” is defined in CJ 12.07. (See also FORECITE F 12.07a.)
F 12.02 n9 Sale Of Drugs: Defendant Permitted To Comment on Lack of Fingerprint Evidence (HS 11352 & HS 11379).
[See FORECITE F 1.24 n6.]
F 12.02 n10 Sale Of Cocaine Base (HS 11352(a)).
People v. Sherman (97) 57 CA4th 102, 104 [66 CR2d 764] held that capability of affecting the central nervous system is not an element of sale of cocaine base.
F 12.02 n11 Controlled Substance In HS 11054(f) Need Not Have A Stimulant Effect.
(See FORECITE F 12.00 n11.)
F 12.02 n12 Drug Sales.
(See FORECITE F 6.10i [Drug Conspiracy Cases: Buyer-Seller Instruction].)
F 12.02 n13 Transportation Of Controlled Substance (HS 11379(b)): Intent To Facilitate Drug Sale Not Required.
(See People v. Patterson (99) 72 CA4th 438 [84 CR2d 870].)
F 12.02 n14 Transportation Of Drugs: Intoxication Or Mental Impairment As Defense To Knowledge Element.
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 12.02 n15 Importation Of Controlled Substance From Foreign Country: Federal Preemption Precludes Prosecution In State Court.
The importation of all items into the United States, including controlled substances, is an activity subject to the exclusive control of the federal government and is preempted by the Commerce Clause and congressional regulation of the field. Therefore, prosecution under HS 11377 and HS 11379 would be unconstitutional. [See Brief Bank # B-856 for briefing on this issue.]
F 12.02 n16 Transportation Of Controlled Substance (HS 11379(a)): Applicability To Transportation By Bicycle.
See People v. LaCross (2001) 91 CA4th 182 [109 CR2d 802].
F 12.02 n17 Possession For Sale: Expert Testimony Regarding Structure Of Drug Trafficking Organizations When No Conspiracy Charged.
See FORECITE F 12.01 n11.
F 12.02a
Transportation of Controlled Substance: Definition of Transportation
(HS 11352)
*Add the following to CJ 12.02:
To establish the crime of transportation of a controlled substance, the prosecution must prove that: (1) The defendant moved the contraband from one place to another; and (2) The defendant had knowledge that the substance transported was a controlled substance.
Points and Authorities
Evidence of unlawful possession is not evidence of transportation. (People v. Kilborn (70) 70 CA3d 998, 1003 [87 CR 189].) The crux of the crime of transporting is movement of contraband from one place to another. The prosecution has the burden to present evidence bearing on this requirement in connecting the defendant with it. (Ibid.) The court must instruct sua sponte that knowledge of the character of the substance being transported is an essential element of the offense of transporting. (People v. Rogers (71) 5 C3d 129, 137 [95 CR 601].)
In People v. Emmal (98) 68 CA4th 1313 [80 CR2d 907] the trial court gave the following definition of transportation in response to a question by the jury: “Transportation of methamphetamine requires that the substance be carried or conveyed from one place to another. There is no set rule as to how far in terms of distance or how long in terms of time the transportation must be. In determining if the substance was ‘transported’ the jury should compare the starting point from which the alleged transportation began, and the end point where it terminated, compare these two locations, and determine if there was a practical difference between them. If there is…then this may indicate there was a transportation, regardless of how short the distance between the two. If there is no practical difference between the locations then this may indicate there was no transportation.” (Emmal, 68 CA4th at 1318.) The Court of Appeal concluded that this instruction was erroneous to the extent that it required a “practical difference between the locations.” (Ibid.) Rather, the prosecution need only show that the vehicle was moved while under the defendant’s control. (Id. at 1318.)
However, this result violates the settled requirement that statutory language be defined in terms of “plain English.” (McBoyle v. United States (31) 283 US 25, 27 [75 LEd 816; 51 SCt 340] [Holmes, J.]; People v. Teamer (93) 20 CA4th 1454, 1458 [25 CR2d 296] [“when a statute is written in plain English and without qualification, we are supposed to interpret it according to the natural import of its language — for the simple reason that, to do otherwise, would be to judicially rewrite the statute. [Citation.]”].) In plain English, the word “transport” means to “transfer or convey form one place to another.” (Webster’s Ninth New Collegiate Dictionary (9th ed. 1991), p. 1255.) By contrast, if one were to use the rationale of the Emmal case, it would constitute “transportation” of narcotics if a person had a marijuana cigarette in his pocket, started the car, and the car lurched and stalled. But if the movement of narcotics in a vehicle is completely insignificant, the narcotics have not been “transferred or conveyed from one place to another.”
NOTE: People v. Emmal rejected the defendant’s argument that HS 11379 should require more than “incidental” movement under the authority of People v. Daniels (69) 71 C2d 1119 [80 CR 897], which applied such a rule to kidnapping for robbery under PC 209.
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).]
NOTES
Usable Quantity: The CALJIC use note states that useable quantity is an element of transportation. Regarding this issue as to possession and sale, see FORECITE F 12.00 n6. Regarding usable quantity as an element of sale, see FORECITE F 12.02b.
F 12.02b
Sale Of Narcotics: Usable Quantity As An Element Of The Crime
(HS 11352 & HS 11379)
*To be added at end of CALJIC 12.02 (1989 Rev):
3. The substance was in an amount sufficient to be used for sale or consumption as a controlled substance.
Points & Authorities
HS 11352 and HS 11379 in California proscribe the sale of “any” controlled substance specified in the statute. Since the term “any” is ambiguous and may refer to a type of narcotic rather than the quantity of a narcotic, the Supreme Court has held that “usable quantity” is an element of any statute proscribing illegal possession. (People v. Leal (66) 64 C2d 504, 512 [50 CR 777]; see also FORECITE F 12.00 n6.) In light of the statutory analysis employed in Leal, it follows that “usable quantity” is an element of the crime of selling narcotics when the statute at issue employs the term “any.” (See People v. Blackshear (68) 261 CA2d 65, 67 [67 CR 662]; see also CJ 12.00 and CJ 12.01 which include this requirement for possession and possession for sale offenses.)
NOTES
Some of the statutory provisions which designate the schedules of substances which are proscribed refer to “any material, compound, mixture or preparation which contains any quantity” of the substance. (E.g. HS 11054(d)(e)(f); HS 11055(d)(e)(f); HS 11056(b)(c); and HS 11057(d)(e)(f).) It has been held that such language eliminates the “usable quantity” requirement for the sale of such a substance. (See People v. Mata (86) 180 CA3d 955, 959 [226 CR 150]; see also People v. Hardin (83) 149 CA3d 994, 998 [197 CR 194] [proof of intentional sale is proof the quantity sold was “usable for sale”].)