SERIES 2300 CONTROLLED SUBSTANCES
F 2300 NOTES
TABLE OF CONTENTS
F 2300 Note 1 Sale, Transportation, Etc, Of Controlled Substance—CALCRIM Cross-References And Research Notes
F 2300 Note 2 Transportation of Drugs: Personal Use (HS 11352 & HS 11379)
F 2300 Note 3 Sale Of Drugs: Entrapment (HS 11352 & HS 11379)
F 2300 Note 4 Selling Or Offering Drugs: Possession Is Not LIO (HS 11352 & HS 11379)
F 2300 Note 5 Sale Of Drugs: Defendant Permitted To Comment On Lack Of Fingerprint Evidence (HS 11352 & HS 11379)
F 2300 Note 6 Sale Of Cocaine Base (HS 11352(a))
F 2300 Note 7 Drug Sales: Buyer-Seller
F 2300 Note 8 Transportation Of Controlled Substance (HS 11379(b)): Intent To Facilitate Drug Sale Not Required
F 2300 Note 9 Transportation Of Drugs: Intoxication Or Mental Impairment As Defense To Knowledge Element
F 2300 Note 10 Importation Of Controlled Substance From Foreign Country: Federal Preemption Precludes Prosecution In State Court
F 2300 Note 11 Transportation Of Controlled Substance (HS 11379(a)): Applicability To Transportation By Bicycle
F 2300 Note 12 Possession For Sale: Expert Testimony Regarding Structure Of Drug Trafficking Organizations When No Conspiracy Charged
F 2300 Note 13 Offer To Sell As LIO Of Selling
F 2300 Note 14 Sale Of Drugs: Conspiracy To Transport (HS 11352 & HS 11379)
F 2300 Note 15 Usable Amount Element Should Be Required For Possession Of Controlled Substance Crimes
Return to Series 2300 Table of Contents.
F 2300 Note 1 Sale, Transportation, Etc, Of Controlled Substance—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
CALCRIM 2301 [Offering to Sell, Transport, etc., a Controlled Substance]
CALCRIM 2302 [Possession for Sale of Controlled Substance]
CALCRIM 2303 [Possession of Controlled Substance While Armed With Firearm]
CALCRIM 2304 [Simple Possession of Controlled Substance]
CALCRIM 2305 [Defense: Momentary Possession of Controlled Substance]
Research Notes:
See CLARAWEB Forum, Controlled Substances—Series 2300.
F 2300 Note 2 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 (1993) 13 CA4th 668, 673-77, relying on People v. Rogers (1971) 5 C3d 129, 136-37.)
CALJIC NOTE: See FORECITE F 12.02 n5.
F 2300 Note 3Sale Of Drugs: Entrapment (HS 11352 & HS 11379)
See FORECITE F 2304 Note 6.
CALJIC NOTE: See FORECITE F 12.02 n6.
F 2300 Note 4 Selling Or Offering Drugs: Possession Is Not LIO (HS 11352 & HS 11379)
See People v. Peregrina-Larios (1994) 22 CA4th 1522, 1524.
CALJIC NOTE: See FORECITE F 12.02 n7.
F 2300 Note 5 Sale Of Drugs: Defendant Permitted To Comment On Lack Of Fingerprint Evidence (HS 11352 & HS 11379)
See FORECITE F 3306 Note 4.
CALJIC NOTE: See FORECITE F 12.02 n9.
F 2300 Note 6Sale Of Cocaine Base (HS 11352(a))
People v. Sherman (1997) 57 CA4th 102, 104 held that capability of affecting the central nervous system is not an element of sale of cocaine base.
CALJIC NOTE: See FORECITE F 12.02 n10.
F 2300 Note 7Drug Sales: Buyer-Seller
See FORECITE F 401.6 Inst 17 and F 401.6 Inst 18.
CALJIC NOTE: See FORECITE F 12.02 n12.
F 2300 Note 8Transportation Of Controlled Substance (HS 11379(b)): Intent To Facilitate Drug Sale Not Required
(See People v. Patterson (1999) 72 CA4th 438.)
CALJIC NOTE: See FORECITE F 12.02 n13.
F 2300 Note 9Transportation Of Drugs: Intoxication Or Mental Impairment As Defense To Knowledge Element
In People v. Reyes (1997) 52 CA4th 975, 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 (1971) 19 CA3d 649. 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.)
CALJIC NOTE: See FORECITE F 12.02 n14.
F 2300 Note 10 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.]
CALJIC NOTE: See FORECITE F 12.02 n15.
F 2300 Note 11Transportation Of Controlled Substance (HS 11379(a)): Applicability To Transportation By Bicycle
See People v. LaCross (2001) 91 CA4th 182.
CALJIC NOTE: See FORECITE F 12.02 n16.
F 2300 Note 12 Possession For Sale: Expert Testimony Regarding Structure Of Drug Trafficking Organizations When No Conspiracy Charged
See FORECITE F 12.01 n11.
CALJIC NOTE: See FORECITE F 12.02 n17.
F 2300 Note 13 Offer To Sell As LIO Of Selling
The Lesser Included Offenses Notes to CC 2300 state: “Because offering to sell is a specific-intent crime (see People v. Jackson (1963) 59 C2d 468, 469–470) and selling does not require specific intent, the committee does not include offering to sell as a lesser included offense. [Rejecting contrary holding in People v. Valenzuela (1995) 33 CA4th 1445, 1451].” However, trial courts are duty-bound to follow appellate precedent not the CALCRIM Notes. (See Auto Equity Sales Inc. v. Superior Court (1962) 57 C2d 450.)
F 2300 Note 14 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-253for a copy of the Watterson opinion.]
CALJIC NOTE: See FORECITE F 12.02 n2.
F 2300 Note 15 Usable Amount Element Should Be Required For Possession Of Controlled Substance Crimes
See Levenson & Ricciardulli, California Criminal Jury Instruction Handbook (West 2012-2013), § 9:1, Authors’ Notes, p. 459.
