SERIES 2300 CONTROLLED SUBSTANCES
F 2300 Sale, Transportation, Etc., Of Controlled Substance (HS 11352, 11379)
TABLE OF CONTENTS
F 2300.1 Titles And Identification Of Parties
F 2300.1 Inst 1 Sale, Transportation, Etc., Of Controlled Substance—Title
F 2300.1 Inst 2 Identification Of Prosecution And Defendant
F 2300.2 Sale, Transportation, Etc, Of Controlled Substance—Tailoring To Facts: Persons, Places, Things And Theories
F 2300.2 Inst 1 (a-d) Include Definition In Elements; Tailor To Facts
F 2300.3 Sale, Transportation, Etc., Of Controlled Substance—Language That Is Argumentative, Confusing, Etc.
F 2300.3 Inst 1 Delete Argumentative Language: Distance Can Be Short
F 2300.4 Sale, Transportation, Etc., Of Controlled Substance—Burden Of Proof Issues
F 2300.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 2300.5 Sale, Transportation, Etc, Of Controlled Substance—Elements And Definitions
F 2300.5 Inst 1 Include Causation Instructions For Administration Theory
F 2300.5 Inst 2 Item Must Be Transported “While Under The Defendant’s Control”
F 2300.5 Inst 3 Right To Control The Substance As Element Of The Charge
F 2300.5 Inst 4 Personal Use
F 2300.6 Sale, Transportation, Etc., Of Controlled Substance—Defense Theories
F 2300.6 Inst 1 (a & b) Juror Consideration Of Fact That Contraband Was Only Transported A Short Distance
F 2300.6 Inst 2 Usable Amount: Pinpoint Instruction
F 2300.6 Inst 3 Sale Or Transportation Of Drugs: Pinpoint Defense Theory Instruction Regarding Knowledge Requirement (HS 11352 & HS 11379)
F 2300.6 Inst 4 Minimal Movement Within A Residence Or Confined Area Is Not Transportation
F 2300.7 Sale, Transportation, Etc., Of Controlled Substance—Preliminary Fact Issues [Reserved]
F 2300.8 Sale, Transportation, Etc., Of Controlled Substance— Unanimity/ Duplicity/ Multiplicity [Reserved]
F 2300.9 Sale, Transportation, Etc., Of Controlled Substance—Lesser Offense Issues [Reserved]
Return to Series 2300 Table of Contents.
F 2300.1 Titles And Identification Of Parties
F 2300.1 Inst 1 Sale, Transportation, Etc., Of Controlled Substance—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 2300.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 2300.2 Sale, Transportation, Etc, Of Controlled Substance—Tailoring To Facts: Persons, Places, Things And Theories
F 2300.2 Inst 1 (a-d) Include Definition In Elements; Tailor To Facts
Alternative a:
*Replace 2300, Element 1 [Selling], as follows:
1. The defendant exchanged _______________ <name of controlled substance> for (money/ _______________ <specify service>/_______________ <specify other thing of value>);
[Source: Adapted from CC 2300, paragraph 3.]
Alternative b [Transportation]:
1. The defendant carried or moved _______________ <name of controlled substance> from _______________ <specify beginning location> to _______________ <specify ending location> [while the _______________ <name of controlled substance> was under (his/her) control];
[Source: Adapted from CC 2300, paragraph 4.]
Alternative c-1 [Administered Directly]:
1. The defendant applied _______________ <name of controlled substance> directly to the body of _______________ <name of person to whom controlled substance was administered> by (injection/_______________ <specify other means>;
[Source: Adapted from CC 2300, paragraph 5.]
Alternative c-2 [Administered By Causing Other Person To Consume The Controlled Substance]:
1. The defendant caused* _______________ <name of person to whom controlled substance was administered> to inhale, ingest or otherwise consume _______________ <name of controlled substance>;
*Note: Causation instructions may be appropriate (see FORECITE F 1501.5 Inst 2).
[Source: Adapted from CC 2300, paragraph 5.]
Alternative d [Undefined Theories]:
1. The defendant (furnished/gave away/imported into California) _______________ <name of controlled substance>.
[Delete paragraphs 3, 4 & 5.]
Points and Authorities
Include Definition In Elements—See FORECITE F 415.5 Inst 2.
Tailor To Facts: Specific Name Of Controlled Substance; Location Of Transportation; Person Administered To—See FORECITE F 400.2 Inst 1.
Tailor To Facts: Prosecution Theory—See FORECITE F 400.2 Inst 1.
Delete Comment That Distance Can Be Short Re: Transportation—See FORECITE F 2300.3 Inst 1.
F 2300.3 Sale, Transportation, Etc., Of Controlled Substance—Language That Is Argumentative, Confusing, Etc.
F 2300.3 Inst 1 Delete Argumentative Language: Distance Can Be Short
*Modify CC 2300, paragraph 4, as follows [deleted language is stricken]:
[A person transports something if he or she carries or moves it from one location to another, even if the distance is short.]
Points and Authorities
See FORECITE F 416.3 Inst 4
STRATEGY NOTE AND CAVEAT—Objection to specific instruction on matters which the prosecution does not have to prove may open the door, in the judge’s view, to prosecutorial objection to specific evidence instructions on matters which are not alone sufficient to prove guilt. (See listing of such instructions at FORECITE PG XI(D)(2).) Although the considerations should be different due to the presumptions of innocence (see e.g., FORECITE F 100.1 Inst 1), the judge may not see it this way. In this light, an alternative approach could be a request that the instruction be balanced and clarified to assure the jurors do consider the specified matter in determining whether the prosecution has proven all essential facts and elements of the charged offense. (See FORECITE F 2300.6 Inst 1.)
Additionally, if the judge rejects a defense request to delete or balance argumentative language that favors the prosecution, this may provide a basis for requesting argumentative language favoring the defendant in another instruction. [See generally, FORECITE F 416.3 Inst 4.]
F 2300.4 Sale, Transportation, Etc., Of Controlled Substance—Burden Of Proof Issues
F 2300.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 2300.5 Sale, Transportation, Etc, Of Controlled Substance—Elements And Definitions
F 2300.5 Inst 1 Include Causation Instructions For Administration Theory
See FORECITE F 1501.5 Inst 2.
F 2300.5 Inst 2 Item Must Be Transported “While Under The Defendant’s Control”
*Modify CC 2300 by adding to definition of transportation [added language is underlined; deleted language is stricken]:
[A person transports something if he or she carries or moves it from one location to another, even if the distance is short. The movement must occur while the ______________ <item transported> is under the defendant’s control.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Duty To Instruct On Every Element Of The Charged Crime—See FORECITE F 103.2 Inst 1.
Control As Element—Control of the contraband is an essential element of transportation. (See People v. Emmal (1998) 68 CA4th 1313, 1318 [prosecution required to prove that the vehicle was moved while under the defendant’s control].)
F 2300.5 Inst 3 Right To Control The Substance As Element Of The Charge
*Add to CC 2300 as enumerated element:
6. The defendant knowingly exercised a right to control the _______________ <name of controlled substance> either personally or through another person.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]
Duty To Instruct On All Elements – “To establish constructive possession, the prosecution must prove a defendant knowingly exercised a right to control the prohibited item, either directly or through another person. [Citation.]” (People v. Sifuentes (2011) 195 CA4th 1410, 1417.) Therefore, this element, as described above, should be included in the enumerated elements. (See FORECITE F 103.2 Inst 1.)
F 2300.5 Inst 4 Personal Use
*Add as a special allegation to CC 2300:
If you find the defendant guilty beyond a reasonable doubt of transporting _______________ <name of controlled substance> you must then decide, if you can, whether the transportation was for purposes other than the defendant’s own personal use. In this regard, please answer the following questions, if you can:
The prosecution has proven beyond a reasonable doubt that the defendant’s transportation of _______________ <name of controlled substance> was for a purpose other than (his/her) own personal use of it.
______ Yes
______ No
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Duty To Instruct On Enhancement Elements—See Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348]; see also FORECITE F 103.2 Inst 1; but see CALCRIM 2300, Related Issues.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 3.11 [Applicability Of Federal Constitutional Rights To Sentencing Decisions]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 2300.6 Sale, Transportation, Etc., Of Controlled Substance—Defense Theories
F 2300.6 Inst 1 (a & b) Juror Consideration Of Fact That Contraband Was Only Transported A Short Distance
*Add after CC 2300, paragraph 6:
Alternative a [fact not disputed]:
However, the fact that the [alleged] _______________ <describe controlled substance> was only transported a short distance is a circumstance to consider in evaluating whether the prosecution has proven [all the elements of the alleged _______________] [______________ <insert specific element to which the evidence relates>].
Alternative b [fact disputed]:
However, whether or not the [alleged] _______________ <describe controlled substance> was only transported a short distance is a circumstance to consider in evaluating whether the prosecution has proven [all the elements of the alleged _______________] [_______________<insert specific element to which the evidence relates>].
Points and Authorities
See FORECITE F 416.3 Inst 7.
F 2300.6 Inst 2 Usable Amount: Pinpoint Instruction
*Add to CC 2300 [CC 3400 adaption]:
The prosecution must prove that the defendant (sold/furnished/administered/gave away/transported/imported into California) an usable amount of _______________ <insert type of controlled substance>. The defendant contends (he/she) did not (sell/furnish/administer/give away/transport/import into California) a useable amount because the amount was not enough to be used by someone as a controlled substance. The prosecution must prove that the amount was useable and that the defendant committed the alleged crime. The defendant does not need to prove that the amount was unusable. If you have a reasonable doubt about whether the amount was usable, or any other element of the crime, you must find (him/her) not guilty.
Points and Authorities
See FORECITE F 315.1.2 Inst 2.
F 2300.6 Inst 3 Sale Or Transportation Of Drugs: Pinpoint Defense Theory Instruction Regarding Knowledge Requirement (HS 11352 & HS 11379)
*Add to CC 2300 as follows:
The prosecution must prove that the defendant knew the substance (he/she) (sold/furnished/administered/gave away/transported/imported into California)was controlled.
The defendant contends that (he/she) did not know the substance was _______________ <name of controlled substance> but instead believed it was a substance that is not controlled.
The prosecution must prove the defendant’s knowledge by proving that:
A. The defendant knew the substance was _______________ <name of controlled substance> and knew it was controlled;
OR
B. The defendant believed the substance was some other controlled substance which (he/she) knew was controlled.
The defendant does not need to prove that (he/she) did not know the substance was controlled. If you have a reasonable doubt about whether the defendant knew the substance was controlled you must find (him/her) not guilty.
[Source: Adapted from CC 3400.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Duty To Instruct On All Elements—See FORECITE F 103.2 Inst 1.
Dual Knowledge Requirements—Knowledge of both the presence and nature of the controlled substance are requisite elements of a drug possession charge. (See People v. Horn (1960) 187 CA3d 68, 74-75.)
People v. Romero (1997) 55 CA4th 147, 151 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 (1946) 28 C2d 450, 455-56; see also People v. Winston (1956) 46 C2d 151, 158.) Proof of knowledge of the specific type of controlled substance is not required.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 12.02 n4.
F 2300.6 Inst 4 Minimal Movement Within A Residence Or Confined Area Is Not Transportation
*Add to CC 2300 paragraph 4:
Option 1:
However, minimal movement within a residence or other confined area does not constitute transportation.
Option 2 [CALCRIM 3400 format]:
The prosecution must prove that the defendant committed the crime[s] of transportation of a controlled substance. The defendant contends that (he/she) did not commit this crime because (he/she) minimally moved the [alleged] controlled substance within a [residence] [confined area]. The prosecution must prove that there was more than minimal movement of the alleged controlled substance within a [residence] [confined area] and committed the crimes[s] with which (he/she) is changed. The defendant does not need to prove (he/she) only minimally moved the [alleged] controlled substance within a [residence] [confined area].
If you have a reasonable doubt about whether the prosecution has proved more than minimal movement within a [residence] [confined area] or any other essential fact or element necessary to prove the defendant guilty, you must find (him/her) not guilty.
[NOTE: This instruction is adapted from CC 3400. However, the last sentence has been augmented in light of the prosecution’s duty to prove all essential facts and elements even if the defense relies on a specific theory.]
Option 3 [add to CC 2300]:
The defendant contends that (he/she) is not guilty of transporting a controlled substance because any movement of the [alleged] controlled substance was minimal, within a residence or confined area and did not facilitate trafficking, distribution, or person use of controlled substances.
Option 4:
The prosecution has not proved the transportation element of the charge if the evidence establishes only minimal movements of a controlled substance within a [residence] [confined area] which did not facilitate trafficking, distribution, or personal use of controlled substances.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency – The CALCRIM language defining transportation is potentially misleading because the phrase “even if the distance is short” could be interpreted to apply to minimal movement from one location to another within a residence or confined area. (See People v. Ormiston (2003) 105 CA4th 676, 684-85.)
Right To Instruction Relating Defense Theory To Burden Of Proof – See FORECITE F 315.1.2 Inst 2.
Minimal Movement As Defense Theory – CC 2300 defines “transports” in terms of carrying something from one location to another “even if the distance is short.” However, if the movement is minimal and does not facilitate use of distribution of drugs, it is not transportation. (People v. Ormiston (2003) 105 CA4th 676, 684-85.)
WARNING! Federal constitutional claims may be lost without proper federalization – To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities, and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added, including, but not limited to, those in FORECITE CG 13.
Sale, Transportation, Etc., Of Controlled Substance—Preliminary Fact Issues [Reserved]
F 2300.8 Sale, Transportation, Etc., Of Controlled Substance— Unanimity/ Duplicity/ Multiplicity [Reserved]
F 2300.9 Sale, Transportation, Etc., Of Controlled Substance—Lesser Offense Issues [Reserved]
