Section 2302 | CALCRIM (Jury Instructions)

A usable amount is a quantity that is enough to be used by someone as a
controlled substance. Useless traces [or debris] are not usable amounts.
On the other hand, a usable amount does not have to be enough, in
either amount or strength, to affect the user.
[The People do not need to prove that the defendant knew which specific
controlled substance (he/she) possessed.]
[Two or more people may possess something at the same time.]
[A person does not have to actually hold or touch something to possess
it. It is enough if the person has (control over it/ [or] the right to control
it), either personally or through another person.]
[Agreeing to buy a controlled substance does not, by itself, mean that a
person has control over that substance.]
New January 2006; Revised October 2010, February 2014, February 2016,
September 2017
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
AUTHORITY
•
Elements. Health & Saf. Code, §§ 11351, 11351.5, 11378, 11378.5.
•
Constructive vs. Actual Possession. People v. Barnes (1997) 57 Cal.App.4th 552,
556 [67 Cal.Rptr.2d 162].
•
Knowledge. People v. Horn (1960) 187 Cal.App.2d 68, 74–75 [9 Cal.Rptr. 578].
•
Selling. People v. Lazenby (1992) 6 Cal.App.4th 1842, 1845 [8 Cal.Rptr.2d 541].
•
Usable Amount. People v. Rubacalba (1993) 6 Cal.4th 62, 65–67 [23 Cal.Rptr.2d
628, 859 P.2d 708]; People v. Piper (1971) 19 Cal.App.3d 248, 250 [96
Cal.Rptr. 643].
•
This Instruction Is Correct. People v. Montero (2007) 155 Cal.App.4th 1170,
1177 [66 Cal.Rptr.3d 668].
•
Definition of Analog Controlled Substance. Health & Saf. Code, § 11401; People
v. Davis (2013) 57 Cal.4th 353, 357, fn. 2 [159 Cal.Rptr.3d 405, 303 P.3d 1179].
•
No Finding Necessary for “Expressly Listed” Controlled Substance. People v.
Davis, supra, 57 Cal.4th at p. 362, fn. 5.
•
Specific Intent to Sell Personally or That Another Will Sell Required. People v.
Parra (1999) 70 Cal.App.4th 222, 226 [8 Cal.Rptr.2d 541] and People v.
Consuegra (1994) 26 Cal.App.4th 1726, 1732, fn. 4 [32 Cal.Rptr.2d 288].
CONTROLLED SUBSTANCES
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LESSER INCLUDED OFFENSES
•
Simple Possession of a Controlled Substance. People v. Saldana (1984) 157
Cal.App.3d 443, 453–458 [204 Cal.Rptr. 465].
•
Possession of Cocaine for Sale Is Not Necessarily Included Offense of Selling
Cocaine Base. People v. Murphy (2005) 134 Cal.App.4th 1504, 1508 [36
Cal.Rptr.3d 872]).
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 87–88, 101.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.01[1][a]–[c], [e], [h] (Matthew Bender).
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