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Sale Or Receipt Of Precursor Chemicals Of
Defendant is accused in [Count[s] ___ of] the information of having committed the crime of selling, transferring, furnishing or obtaining __________ (insert specific substance at issue from H&S 11000(a)), a violation of HS 11106(j).
Every person who sells, transfers, furnishes or obtains __________ (insert specific substance at issue from HS 11000(a)) without a permit is guilty of violating HS 11106(j).
In order to prove such crime, the prosecution must prove each of the following elements beyond a reasonable doubt:
1. Defendant sold, transferred, furnished or obtained a substance; and
2. The substance sold, transferred, furnished or obtained was __________ (insert specific substance at issue from HS 11000(a)); and
3. The defendant was required by law to obtain a permit before selling, transferring, furnishing or obtaining __________; and
4. Defendant did not have a permit to sell, transfer, furnish or obtain __________.
Points and Authorities
HS 11106 requires that a permit be obtained to transport chemicals that are precursors of controlled substances. However, HS 11106(a) states that no permit is required with regard to certain specific chemicals named in that section which are sold, transferred, furnished or obtained pursuant to the Federal Food and Drug Act. In People v. Gott (94) 26 CA4th 881, 888-89 [31 CR2d 840], the court concluded that the exception created by HS 11106(a) is a matter upon which the prosecution has the burden of producing evidence. Therefore, the jury must be instructed that the prosecution bears the burden of proving that a permit was required under the statute.
(See FORECITE F 1.00 n9.)
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).]