Section 2410 | CALCRIM (Jury Instructions)

must find the defendant not guilty of this crime.]
New January 2006; Revised October 2010, April 2011, August 2015, September
2018
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
If the prosecution alleges under a single count that the defendant possessed multiple
items, the court has a sua sponte duty to instruct on unanimity. (See People v. Wolfe
(2003) 114 Cal.App.4th 177, 184–185 [7 Cal.Rptr.3d 483]; People v. Rowland
(1999) 75 Cal.App.4th 61, 65 [88 Cal.Rptr.2d 900].) Give the bracketed paragraph
that begins with “The People allege that the defendant possessed,” inserting the
items alleged.
Defenses—Instructional Duty
Section 11364 does not apply to possession of hypodermic needles or syringes for
personal use if acquired from an authorized source. The defendant need only raise a
reasonable doubt about whether his or her possession of these items was lawful.
(See People v. Mower (2002) 28 Cal.4th 457, 479 [122 Cal.Rptr.2d 326, 49 P.3d
1067].) If there is sufficient evidence, the court has a sua sponte duty to instruct on
this defense. (See People v. Fuentes (1990) 224 Cal.App.3d 1041, 1045 [274
Cal.Rptr. 17] [authorized possession of hypodermic is an affirmative defense]);
People v. Mower, at pp. 478–481 [discussing affirmative defenses generally and the
burden of proof].) Give the bracketed word “unlawfully” in element 1 and the
bracketed paragraph on that defense.
AUTHORITY
•
Elements. Health & Saf. Code, § 11364.
•
Statute Constitutional. People v. Chambers (1989) 209 Cal.App.3d Supp. 1, 4
[257 Cal.Rptr. 289].
•
Constructive vs. Actual Possession. People v. Barnes (1997) 57 Cal.App.4th 552,
556 [67 Cal.Rptr.2d 162].
•
Unanimity. People v. Wolfe (2003) 114 Cal.App.4th 177, 184–185 [7 Cal.Rptr.3d
483].
•
Authorized Possession Defense. Health & Saf. Code, § 11364(c).
RELATED ISSUES
Cannabis Paraphernalia Excluded
Possession of a device for smoking cannabis, without more, is not a crime. (In re
Johnny O. (2003) 107 Cal.App.4th 888, 897 [132 Cal.Rptr.2d 471].)
CALCRIM No. 2410
CONTROLLED SUBSTANCES
334

SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare § 155.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.04[2][a] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.01[1][a], [b] (Matthew Bender).
2411
Reserved for Future Use
CONTROLLED SUBSTANCES
CALCRIM No. 2410
335