SERIES 2300 CONTROLLED SUBSTANCES
F 2302 Possession For Sale Of Controlled Substance (HS 11351, 11351.5, 11378, 11378.5) (Case Law Discussing This Instruction)
TABLE OF CONTENTS
F 2302.1 Titles And Identification Of Parties
F 2302.1 Inst 1 Possession For Sale Of Controlled Substance—Title
F 2302.1 Inst 2 Identification Of Prosecution And Defendant
F 2302.2 Possession For Sale Of Controlled Substance—Tailoring To Facts: Persons, Places, Things And Theories
F 2302.2 Inst 1 Include Definition In Elements; Tailor To Facts
F 2302.3 Possession For Sale Of Controlled Substance—Language That Is Argumentative, Confusing, Etc.
F 2302.3 Inst 1 Modification Of Argumentative Definition Of Possession
F 2302.3 Inst 2 Possession: What The Prosecution Does Not Need To Prove – Instruction Should Be Balanced
F 2302.4 Possession For Sale Of Controlled Substance—Burden Of Proof Issues
F 2302.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 2302.5 Possession For Sale Of Controlled Substance—Elements And Definitions
F 2302.5 Inst 1 (a & b) Possession As Element
F 2302.5 Inst 2 Include Definition Of Selling In Intent To Sell Element
F 2302.5 Inst 3 Actual Possession Requires Physical Control Or The Right To Control
F 2302.6 Possession For Sale Of Controlled Substance—Defense Theories
F 2302.6 Inst 1 Possession: Pinpoint Instruction
F 2302.6 Inst 2 Pinpoint: Knowledge Of Sale Insufficient To Establish Intent To Sell (HS 11351, HS 11351.5, HS 11378, HS 11378.5)
F 2302.6 Inst 3 (a & b) Agreement To Buy Does Not Prove Possession Based On Either Actual Control Or Right To Control
F 2302.6 Inst 4 Usable Amount: Pinpoint Instruction
F 2302.6 Inst 5 Sale Or Transportation Of Drugs: Knowledge Requirement (HS 11352 & HS 11379)
F 2302.7 Possession For Sale Of Controlled Substance—Preliminary Fact Issues [Reserved]
F 2302.8 Possession For Sale Of Controlled Substance—Unanimity/Duplicity/Multiplicity [Reserved]
F 2302.9 Possession For Sale Of Controlled Substance—Lesser Offense Issues
F 2302.9 Inst 1 Pinpoint Instruction: Simple Possession As Lesser Offense [CALCRIM 3400 adaption]
Return to Series 2300 Table of Contents.
F 2302.1 Titles And Identification Of Parties
F 2302.1 Inst 1 Possession For Sale Of Controlled Substance—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 2302.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 2302.2Possession For Sale Of Controlled Substance—Tailoring To Facts: Persons, Places, Things And Theories
F 2302.2 Inst 1 Include Definition In Elements; Tailor To Facts
Adapt from FORECITE F 2300.2 Inst 1.
F 2302.3 Possession For Sale Of Controlled Substance—Language That Is Argumentative, Confusing, Etc.
F 2302.3 Inst 1 Modification Of Argumentative Definition Of Possession
*Modify CC 2302 paragraph 7, sentence 2, as follows [added language is underlined; deleted language is stricken]:
It is enough A person has possession of something if the person has (physical control over it/ [or] the right to control it), 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.]
The CALCRIM Deficiency – The CALCRIM instruction which purports to define possession (CC 2302 paragraph 7) is argumentative, incomplete and potentially misleading because it includes language which describes what is not possession; i.e., “a person does not need to actually hold or touch something to possess it.” This language is an argumentative comment on the evidence through which the judge is effectively arguing the case on behalf of the prosecutor. The trial judge should not become an advocate in the guise of instructing the jury. (People v. Cummings (1993) 4 C4th 1233, 1305; see also F 416.3 Inst 4 [Improper Argumentative And Duplicative Reference To Matters Which The Prosecution Does “Not Have To Prove”] [discussing additional grounds upon which instructions on matters that do not need to be proved are argumentative and duplicative].
Moreover, instruction that a matter need not be proven improperly implies that the evidence should be given no weight at all. (Cf., People v. Garceau (1993) 6 C4th 140, 193 [improper for an instruction to imply the weight to be given to specific evidence].) Even if a fact does not need to be proven as an element of the offense, it may still be relied upon by the defense. (See, e.g., Martin v. Ohio (1987) 480 US 228 [94 LEd2d 267; 107 SCt 1098].)
The defendant must be given a meaningful opportunity to present a defense. (See California v. Trombetta (1984) 467 US 479, 485 [104 SCt 2528; 81 LEd2d 413]; see also FORECITE CG 4.5.) And, due process principles require instructions be fair and balanced as between the defense and prosecution. (See Wardius v. Oregon (1973) 412 US 470 [37 LEd2d 82; 93 SCt 2208]; see also FORECITE CG 6.5.) Commenting that certain matters need not be proven by the prosecution without also commenting that such matters may still be considered in favor of the defense unfairly favors the prosecution over the defense. (See also F 416.3 Inst 4.)
See also FORECITE F 416.3 Inst 7 [Argumentative Language Should Be Balanced To Assure Jurors Consider All Relevant Evidence].
Requirement Of “Physical” Control – See FORECITE F 2302.5 Inst 3 [Actual Possession Requires Physical Control Or The Right To Control].
Deletion Of Theory Of Possession Not Relied Upon By The Prosecution – See FORECITE PG V(A)(2.2) [Judge’s Duty To Not Instruct On Inapplicable Theories]; see also PG X(E)(16) [Errors In Superfluous Or Irrelevant Instructions].
Identification Of Parties – See FORECITE F 100.2 Note 1.
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]
FORECITE CG 4.5 [Right To Present Evidence And Fair Opportunity To Defend]
FORECITE CG 6.5 [Instructions Must Be Balanced Between Defense and Prosecution]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
ALERT: See Caveat and Strategy Notes at end of F 416.3 Inst 4.
F 2302.3 Inst 2 Possession: What The Prosecution Does Not Need To Prove – Instruction Should Be Balanced
*Add to CC 2302, paragraph 7 if request to delete is denied:
However, [any evidence that] [the fact that] the defendant did not touch or hold the _____________ <insert object allegedly possessed> is a factor to consider in attempting to decide whether the prosecution has proved beyond a reasonable doubt that the defendant [physically controlled] [or] [had the right to control] the _____________ <insert object allegedly possessed>.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]
Matters Not Necessary To Prove: Need For Balance – If the jurors are instructed on specific factual matters which the prosecution does not need to prove regarding possession (but see FORECITE F 2302.3 Inst 1), then the instruction should be balanced and clarified to assure the jurors do consider the specified matter in deciding whether the prosecution has proven all essential facts and elements of the charged offense. (See Martin v. Ohio (1987) 480 US 228 [94 LEd2d 267; 107 SCt 1098].)
Also, without such language the instruction will improperly favor the prosecution in violation of the requirement that the instructions be balanced, otherwise the instruction will be improperly argumentative. (See Cool v. United States (1972) 409 US 100, 103 n 4 [34 LEd2d 335; 93 SCt 354] [reversible error to instruct jury that it may convict solely on the basis of accomplice testimony but not that it may acquit based on the accomplice testimony]; People v. Moore (1954) 43 C2d 517, 526-27 [275 P2d 485] [“There should be absolute impartiality as between the People and the defendant in the matter of instructions”]; Reagan v. United States (1895) 157 US 301, 310 [15 SCt 610; 39 LEd 709]; see also Wardius v. Oregon (1973) 412 US 470 [93 SCt 2208; 37 LEd2d 82].)
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 4.1 [Right To Instruct The Jurors On Defense Theories]
FORECITE CG 6.5 [Instructions Must Be Balanced Between Defense and Prosecution]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 2302.4 Possession For Sale Of Controlled Substance—Burden Of Proof Issues
F 2302.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 2302.5 Possession For Sale Of Controlled Substance—Elements And Definitions
F 2302.5 Inst 1 (a & b) Possession As Element
*Add to CC 2302, Element 1, as follows:
Alternative a:
To prove the defendant possessed the ___________ <item or object alleged to have been possessed> the prosecution must prove beyond a reasonable doubt that the defendant:
1. Had knowing physical possession of the ___________ <item or object alleged to have been possessed>;
OR
2. By word or act the defendant knowingly [assumed control of] [exercised control over] the ___________ <item or object alleged to have been possessed>.
Alternative b:
A person does not possess an object unless he or she has:
1. Knowing physical possession of the object; or
2. Immediate and knowing control over the object.
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 Offense—See FORECITE F 103.2 Inst 1.
Elements Of Possession—See FORECITE F 3306 Inst 1.
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.
F 2302.5 Inst 2 Include Definition Of Selling In Intent To Sell Element
*Modify CC 2302, Element 4, as follows [added language is underlined; deleted language is stricken]:
4. When the defendant possessed the controlled substance, (he/she) intended to sell it exchange it for (money/ _______________ <specify service>/_______________ <specify other thing of value>;
[Source: Adapted from CC 2302, paragraph 3.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Include Definition In Element—See FORECITE F 417.5 Inst 2.
Tailor To Facts: Specific Prosecution Theory—See FORECITE F 400.2 Inst 1.
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.
F 2302.5 Inst 3 Actual Possession Requires Physical Control Or The Right To Control
*Modify CC 2302, paragraph 7, sentence 2, as follows [added language is underlined]:
Option a [prosecution relying on both actual and constructive possession]:
It is enough if the person has (physical control over it/ [or] the right to physically control it), either personally or through another person.]
Option b [prosecution relying only on actual possession]:
It is enough if the person personally has (physical control over it/ [or] the right to control it), 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.]
The CALCRIM Deficiency – People v. Montero (2007) 155 CA4th 1170, 1177 concluded that the definition of possession in CC 2302 is correct. However, the issue before the Montero court was whether possession requires dominion and control. The question of whether or not actual possession requires “physical” control was not considered or addressed in the Montero opinion and, therefore, is not controlling on that issue. (See People v. Superior Court (Marks) (1991) 1 C4th 56, 65-66.)
Moreover, in so concluding, Montero relied on CJ 12.00 and 12.01 which define actual possession as requiring that the person “knowingly exercise physical control. . . .” Moreover, the California Supreme Court has held that the CJ 12.00 definition “accurately restated the law.” (People v. Morales (2001) 25 C4th 34, 47-48.)
Hence, under Auto Equity Sales Inc. v. Superior Court (1962) 57 C2d 450 trial courts should be required to follow the definition of actual possession approved by the California Supreme Court over the one approved by an intermediate appellate court (i.e., Montero). In sum, CC 2302 should be modified as set forth above.
Deletion Of Argumentative Language – For a discussion of Option b, above, see FORECITE F 2302.3 Inst 1.
Jury Should Not Be Instructed On Theory Of Possession Unsupported By The Evidence – It is error to instruct on a factual theory of guilt that is not supported by the evidence. (See People v. Guiton (1993) 4 C4th 1116; see also FORECITE PG X(B)(3)-(5).)
Definition Of Possession Should Be Balanced – See FORECITE F 2302.3 Inst 2.
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]
FORECITE CG 6.5 [Instructions Must Be Balanced Between Defense and Prosecution]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 2302.6 Possession For Sale Of Controlled Substance—Defense Theories
F 2302.6 Inst 1 Possession: Pinpoint Instruction
See FORECITE F 2352.6 Inst 1.
F 2302.6 Inst 2Pinpoint: Knowledge Of Sale Insufficient To Establish Intent To Sell (HS 11351, HS 11351.5, HS 11378, HS 11378.5)
*Add to CC 2302 when appropriate:
The prosecution must prove the defendant intended to sell a controlled substance. The defendant contends that even though (he/she) knew that the drugs would eventually be sold by another party (he/she) did intend to sell the controlled substance.
The prosecution must prove beyond a reasonable doubt that the defendant had the intent to sell and not mere knowledge that the drugs would eventually be sold by another party. The defendant does not need to prove that (he/she) merely had knowledge that the drugs would eventually be sold by another party and did not intend to sell.
If you have a reasonable doubt about whether the defendant intended to sell controlled substance you must find (him/her) not guilty.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Right To Defense Theory Pinpoint Instruction—See FORECITE F 315.1.2 Inst 2.
Knowledge Of Sale Insufficient—In re Christopher B. (1990) 219 CA3d 455, 466 held that a conviction of possession for sale may not be based upon a finding that the defendant knew the drugs would eventually be sold; specific intent to sell is required. (See also People v. Newman (1971) 5 C3d 48, 53-54; People v. Glass (75) 44 CA3d 772, 774 [118 CR 797]; People v. Consuegra (1994) 26 CA4th 1726, 1732.)
People v. Parra (1999) 70 CA4th 222 held that HS 11351 does not require that the defendant have the specific intent to sell the controlled substance personally, only that it be “for sale,” and concluded that in order to be convicted of HS 11351 the defendant needs to either (1) have the specific intent to sell the controlled substance personally, or (2) have the specific intent that someone else will sell the controlled substance. “We find no meaningful distinction in culpability between the defendant who actually sells the controlled substance and the defendant who transports it with the specific intent that someone else will sell it, as they both share in the specific intent to sell.” (Parra, 70 CA4th 227.)
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.
NOTE
Christopher B. did not determine whether the perpetrator must intend to sell the drugs personally; however, Consuegra concluded that the requisite mental state “is satisfied when the drugs are possessed with the specific intent that they be sold, regardless of whether the possessor intends to sell them personally. (Consuegra 26 CA4th at 1732, fn 4.)
RESEARCH NOTES: See Annotation, Sufficiency of evidence possessor of controlled substance other than cocaine, heroin, or marijuana had intent to distribute it, so as to violate 21 USCS §841(a)(1), 80 ALR Fed 507 and Later Case Service; Annotation, Sufficiency of evidence that possessor of marijuana had intent to distribute so as to violate 21 USC §841(a)(1), 79 ALR Fed 113; Annotation, Sufficiency of evidence the possessor of heroin had intent to distribute it so as to violate 21 USC §841(a)(1), 78 ALR Fed 413 and Later Case Service.]
CALJIC NOTE: See FORECITE F 12.01a.
F 2302.6 Inst 3 (a & b) Agreement To Buy Does Not Prove Possession Based On Either Actual Control Or Right To Control
*Modify CC 2302, last paragraph, as follows [added language is underlined; deleted language is stricken]:
Alternative a:
[Agreeing to buy a controlled substance does not, by itself, mean that a person has control over possession of that substance.]
Alternative b:
[Agreeing to buy a controlled substance does not, by itself, mean that a person has control over or the right to control that substance.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Agreement To Purchase Does Not Constitute Right To Control—An agreement or contract to purchase a controlled substance does not establish possession of that substance. (See Armstrong v. Superior Court (1990) 217 CA3d 535, 538-40; People v. Barnes (1997) 57 CA4th 552.) The clearest way to express this rule is in terms of possession since that is the term used in the elements of the charge. The CC instruction excludes “right to control” from the agreement-to-buy paragraph, but includes it as a definition of possession in the preceding paragraph: “It is enough [for possession] if the person has … the right to control it, either personally or through another person.”
Thus, the CALCRIM language improperly implies that an agreement or contract to purchase may establish possession on a “right-to-control” basis.
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.
F 2302.6 Inst 4 Usable Amount: Pinpoint Instruction
See FORECITE F 2300.6 Inst 2.
F 2302.6 Inst 5 Sale Or Transportation Of Drugs: Knowledge Requirement (HS 11352 & HS 11379)
See FORECITE F 2300.6 Inst 3.
F 2302.7 Possession For Sale Of Controlled Substance—Preliminary Fact Issues[Reserved]
F 2302.8 Possession For Sale Of Controlled Substance—Unanimity/Duplicity/Multiplicity[Reserved]
F 2302.9 Possession For Sale Of Controlled Substance—Lesser Offense Issues
F 2302.9 Inst 1 Pinpoint Instruction: Simple Possession As Lesser Offense [CALCRIM 3400 adaption]
The prosecution must prove the defendant committed the crime of possession of _______________ <insert alleged controlled substance> for sale. The defendant contends (he/she) did not commit (this crime/these crimes) and that (he/she) possessed the _______________ <insert alleged controlled substance> for (his/her) own use.
The prosecution must prove that the defendant did not possess the _______________ <insert alleged controlled substance> for (his/her) own use and instead intended to sell it. The defendant does not need to prove (he/she) possessed the _______________ <insert alleged controlled substance> for (his/her) own use. If you have a reasonable doubt that the defendant intended to sell the _______________ <insert alleged controlled substance> or about any other essential fact or element necessary to prove the defendant guilty, you must vote to 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.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]
Right To Instruction Relating Defense Theory To Burden Of Proof – See FORECITE F 315.1.2 Inst 2.
Simple Possession As Defense Theory – It is well established that simple possession is a lesser included offense of possession for sale. (See People v. Saldana (1984) 157 CA3d 443, 453-58; People v. Francis (1969) 71 C2d 66, 73; People v. Adams (1990) 220 CA3d 680, 690 [possession of cocaine for sale within the meaning of HS 11350 is a LIO of possession of cocaine for sale in violation of HS 11351]; California Mandatory Criminal Jury Instruction Handbook (CJER) (2013) § 2.37.)
Accordingly, when supported by the evidence the judge is obligated to instruct on simple possession even in absence of a request. (People v. Barton (1995) 12 C4th 186; see also U.S. v Hernandez (9th Cir. 2007) 476 F3d 791 [reversible error to deny simple possession instruction when defendant possessed methamphetamine with a wholesale value between $2,160-$4,140].)
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.
