Section 3200 | CALCRIM (Jury Instructions)

enhancement under Health and Safety Code section 11370.4. Give the bracketed
phrases “or more” if the defendant is charged under Health and Safety Code section
11352.5 or Penal Code section 1203.07.
Give bracketed element 2 if an enhancement under Health and Safety Code section
11370.4 is alleged in a count of conspiracy. (Health & Saf. Code, § 11370.4(a);
People v. Salcedo (1994) 30 Cal.App.4th 209, 217 [35 Cal.Rptr.2d 539].) Do not
give element 2 if the defendant is not charged with conspiracy but is being
prosecuted for one or more substantive offenses on a theory of coconspirator
liability. (People v. Salcedo, supra, 30 Cal.App.4th at p. 217.) If the defendant is
charged with the enhancement on both conspiracy and substantive offenses, the
court should give this instruction once for the conspiracy charge, with element 2,
and once for all the substantive offenses, without element 2. If properly instructed,
the jury need not make a special finding that the defendant was substantially
involved. (People v. Lobato (2003) 109 Cal.App.4th 762, 766 [135 Cal.Rptr.2d
429].)
AUTHORITY
•
Enhancements and Sentencing Factors. Pen. Code, §§ 1203.07(a)(1), (2) & (4);
Health & Saf. Code, §§ 11352.5, 11370.4.
•
Substance Containing Controlled Substance—Need Not Be Pure. People v.
Pieters (1991) 52 Cal.3d 894, 903 [276 Cal.Rptr. 918, 802 P.2d 420].
•
Knowledge of Quantity or Specific Intent Not Required. People v. Meza (1995)
38 Cal.App.4th 1741, 1748 [45 Cal.Rptr.2d 844].
•
Conspiracy Instruction. People v. Duran (2001) 94 Cal.App.4th 923, 941–942
[114 Cal.Rptr.2d 595]; People v. Salcedo (1994) 30 Cal.App.4th 209, 217 [35
Cal.Rptr.2d 539]; People v. Lobato (2003) 109 Cal.App.4th 762, 766 [135
Cal.Rptr.2d 429].
RELATED ISSUES
Must Controlled Substance Actually Exist?
In Valenzuela v. Superior Court (1995) 33 Cal.App.4th 1445, 1447 [39 Cal.Rptr.2d
781], the court held that, where a defendant is charged with offering to sell, an
enhancement under Health and Safety Code section 11370.4 “must be based on the
weight of a substance in existence, not on an amount merely offered or negotiated.”
Thus, the enhancement was not proper where the defendant negotiated to sell five
kilograms of heroin but in fact only produced less than one kilogram, or where the
defendant offered to sell four kilograms of cocaine but never possessed that
substance. (Valenzuela, supra, 33 Cal.App.4th at p. 1455.) Similarly, People v. Lopez
(1993) 20 Cal.App.4th 897, 902–903 [24 Cal.Rptr.2d 649], held that an
enhancement under Health and Safety Code section 11379.8 was not proper where
the defendant agreed to manufacture more than three pounds of methamphetamine
but failed to produce any of the substance. On the other hand, in People v. Howard
(1995) 33 Cal.App.4th 1407, 1414–1416 [39 Cal.Rptr.2d 766], the court upheld an
enhancement where the defendants agreed to purchase seven kilograms of cocaine
CALCRIM No. 3200
ENHANCEMENTS AND SENTENCING FACTORS
920

and had the required money on hand, but t