SERIES 2300 CONTROLLED SUBSTANCES
F 2302 NOTES
TABLE OF CONTENTS
F 2302 Note 1 Possession For Sale Of Controlled Substance—CALCRIM Cross-References And Research Notes
F 2302 Note 2 Possession For Sale: Intoxication Or Mental Impairment As Defense To Knowledge
F 2302 Note 3 Possession For Sale: Defendant Permitted To Comment on Lack of Fingerprint Evidence
F 2302 Note 4 Challenging The Distinction Between Cocaine And Cocaine Base On Equal Protection And Former Jeopardy Grounds (HS 11351.5)
F 2302 Note 5 Drug Sales: Buyer-Seller
F 2302 Note 6 Possession For Sale: Expert Testimony Regarding Structure Of Drug Trafficking Organizations When No Conspiracy Charged
F 2302 Note 7 Police Officer Expert: Possession for Sale—Bias Due To Forfeiture
Return to Series 2300 Table of Contents.
F 2302 Note 1Possession For Sale Of Controlled Substance—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
See FORECITE F 2300 Notes
CALCRIM 2300 [Sale, Transportation, Etc., of Controlled Substance]
CALCRIM 2301 [Offering to Sell, Transport, Etc., a 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 2302 Note 2 Possession For Sale: Intoxication Or Mental Impairment As Defense To Knowledge
Knowledge of both the presence and nature of the controlled substance are requisite elements of a drug possession charge. (See CJ 12.00 and authorities cited therein; and CJ 1.24.)
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 12.01 n1.
F 2302 Note 3 Possession For Sale: Defendant Permitted To Comment on Lack of Fingerprint Evidence
See FORECITE F 3306 Note 4.
CALJIC NOTE: See FORECITE F 12.01 n4.
F 2302 Note 4 Challenging The Distinction Between Cocaine And Cocaine Base On Equal Protection And Former Jeopardy Grounds (HS 11351.5)
In People v. Howell (1990) 226 CA3 254, 260-61, the court held that although cocaine hydrochloride and cocaine base are both cocaine, cocaine hydrochloride is a different substance from cocaine base.
However, a successful challenge to the distinction between cocaine and cocaine base was made in the Atlanta U.S. District Court. In U.S. v. Davis (1994) 864 F Supp 1303, counsel argued that there is no scientific difference between cocaine and cocaine base. In that case, the judge granted an evidentiary hearing wherein chemists and pharmacologists hired by the defense, prosecution and court all agreed on one critical point: ‘cocaine base’ is synonymous with ‘cocaine.’ The court agreed with the defense and held that the heightened penalty provision for cocaine base should be ignored. (But see U.S. v. Byse (11th Cir. 1994) 28 F3d 1165; U.S. v. Armstrong (1996) 517 US 456 [134 LEd2d 687; 116 SCt 1480] [insufficient showing of selective prosecution].)
In California, the penalty for a violation of HS 11351 (possession of cocaine for sale) is two, three or four years in prison. The penalty for a violation of HS 11351.5 (possession of cocaine base for sale) is three, four or five years in prison. If cocaine is synonymous with “cocaine base” then the heightened penalty required by HS 11351.5 may be challenged on former jeopardy and equal protection grounds since different penalties may not be imposed for the same crime. (See People v. Henderson (1963) 60 C2d 482, 496-97; People v. Lewis (1939) 13 C2d 280, 282; In re Ambrosewf (1895) 109 C 264, 265 [41 P 1101].) Other statutes which specifically refer to cocaine base include HS 11351, HS 11351.5, HS 11352, HS 11353, HS 11353.5, HS 11353.6, HS 11353.7, HS 11354, HS 11355, HS 11364, HS 11365, HS 11366, HS 11366.5, HS 11366.6, HS 11369, HS 11370, HS 11370.1, HS 11370.2, HS11370.4, HS 11371, HS 11372, PC 1203.07, PC 1203.073.
CALJIC NOTE: See FORECITE F 12.01 n6.
F 2302 Note 5 Drug Sales: Buyer-Seller
See FORECITE F 2300 Note 7.
CALJIC NOTE: See FORECITE F 12.01 n10.
F 2302 Note 6 Possession For Sale: Expert Testimony Regarding Structure Of Drug Trafficking Organizations When No Conspiracy Charged
See U.S. v. McGowan (9th Cir. 2001) 274 F3d 1251 [expert testimony regarding structure of drug trafficking organizations inadmissible when no conspiracy or other connection with drug trafficking organization is alleged]; see also U.S. v. Vallejo (9th Cir. 2001) 237 F3d 1008; U.S. v. Varela-Rivera (9th Cir. 2002) 279 F3d 1174 [court erred in admitting expert testimony regarding modus operandi of drug trafficking enterprises and drug courier fees where defendant was not charged with conspiracy to distribute drugs]; U.S. v. Pineda-Torres (9th Cir. 2002) 287 F3d 860. But see FORECITE F 1.24 n6, CAVEAT.
CALJIC NOTE: See FORECITE F 12.01 n11.
F 2302 Note 7 Police Officer Expert: Possession for Sale—Bias Due To Forfeiture
In cases where a police officer “expert” testifies that the defendant possessed drugs for the purposes of sale, the defendant may wish to request an instruction informing the jury that if the defendant is convicted of possession for sale, his/her property may be forfeited and over 75% of the proceeds may go to the local police agency which participated in the seizure. (H&S Code §11489(b)(2).) Such an instruction is warranted because the police officer may have a bias or motive in seeing that the defendant is convicted of possession for sale as opposed to simple possession which does not result in forfeiture. (See People v. Cardwell UNPUBLISHED (F014847).) [See Opinion Bank # O-105for a copy of this opinion.]
RESEARCH NOTES: See Annotation, Admissibility, in criminal prosecution, of expert opinion allegedly stating whether drugs were possessed with intent to distribute—state cases, 83 ALR4th 629 and Later Case Service.
CALJIC NOTE: See FORECITE F 12.01 n2.
