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F 12.09.3 n1 Possession Of Chemicals For Manufacture Of Methamphetamine: Conviction Of Possession (HS 11377(a) & HS 11383(a)(b)(c)).
To be convicted of the illegal possession of a controlled substance (HS 11377(a)) CJ 12.00 requires that the jury must find “the substance [possessed by the defendant] was in an amount sufficient to be used as a controlled substance.” This requirement was established in People v. Leal (66) 64 C2d 504, 506, 511-12 [50 CR 777]; People v. Johnson (70) 5 CA3d 844, 848 [85 CR 238]; see also, People v. Vargas (73) 36 CA3d 499, 505-06 [111 CR 745].
However, an unresolved issue is presented when the defendant possesses chemicals which are not immediately usable as a narcotic but may be converted or manufactured into a narcotic form. In the depublished opinion of People v. Rowe DEPUBLISHED (90) 219 CA3d 1589 [269 CR 64], the Court of Appeal addressed this issue. The court held that the defendant was not entitled to instruct the jury that the narcotic be in a usable form agreeing with the prosecution that “there is no valid requirement that the drug be currently in usable form in order for its possessor to be guilty of violating [HS 11377(a)].” (Ibid.) The Rowe court reached this conclusion by distinguishing the Leal/Johnson/Vargas line of cases and relying on language in those cases suggesting that the “usable form” requirement may be satisfied if the substance has “narcotic potential.” However, as noted, the Rowe opinion was ordered depublished and is neither a citable or precedential authority. Hence, the issue remains unresolved.
There is a specific statute, HS 11383, which imposes criminal liability for possession of the “precursors” of methamphetamine with the intent to manufacture that drug. However, in cases such as Rowe where the defendant possesses the raw chemicals rather than the immediate precursors, HS 11383 would not be applicable.
F 12.09.3a
Drug Manufacturing/Possession With Intent To Manufacture:
Knowledge As An Element
(HS 11379.6; HS 11383)
*Add to CJ 12.09.3:
(See FORECITE F 12.09.1b.)
