Possession of a controlled substance is the knowing possession of a controlled substance, such as methamphetamine.

Standard Punishment

One year

Relevant Statutes

Health & Safety Code §11377

(a) Except as authorized by law and as otherwise provided in subdivision (b) or Section 11375, or in Article 7 (commencing with Section 4211) of Chapter 9 of Division 2 of the Business and Professions Code, every person who possesses any controlled substance which is (1) classified in Schedule III, IV, or V, and which is not a narcotic drug, (2) specified in subdivision (d) of Section 11054, except paragraphs (13), (14), (15), and (20) of subdivision (d), (3) specified in paragraph (11) of subdivision (c) of Section 11056, (4) specified in paragraph (2) or (3) of subdivision (f) of Section 11054, or (5) specified in subdivision (d), (e), or (f) of Section 11055, unless upon the prescription of a physician, dentist, podiatrist, or veterinarian, licensed to practice in this state, shall be punished by imprisonment in a county jail for a period of not more than one year, except that such person may instead be punished pursuant to subdivision (h) of Section 1170 of the Penal Code if that person has one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 of the Penal Code or for an offense requiring registration pursuant to subdivision (c) of Section 290 of the Penal Code.
(b) The judge may assess a fine not to exceed seventy dollars ($70) against any person who violates subdivision (a), with the proceeds of this fine to be used in accordance with Section 1463.23 of the Penal Code. The court shall, however, take into consideration the defendant’s ability to pay, and no defendant shall be denied probation because of his or her inability to pay the fine permitted under this subdivision.
(c) It is not unlawful for a person other than the prescription holder to possess a controlled substance described in subdivision (a) if both of the following apply:
(1) The possession of the controlled substance is at the direction or with the express authorization of the prescription holder.
(2) The sole intent of the possessor is to deliver the prescription to the prescription holder for its prescribed use or to discard the substance in a lawful manner.
(d) This section does not permit the use of a controlled substance by a person other than the prescription holder or permit the distribution or sale of a controlled substance that is otherwise inconsistent with the prescription.

Standard Jury Instruction

The jury will generally be instructed pursuant to CalCrim 2304 and 2305, which are summarized as follows

The defendant is charged with possessing methamphetamine, a controlled substance in violation of Health & Safety Code §11377To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant unlawfully possessed a controlled substance;
2. The defendant knew of its presence;
3. The defendant knew of the substance’s nature or character as a controlled substance;
4. The controlled substance was in a usable amount.

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 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.

The defendant is not guilty of possessing a controlled substance if he had a valid, written prescription for that substance from a physician, dentist, podiatrist, naturopathic doctor, or veterinarian licensed to practice in California. The People have the burden of proving beyond a reasonable doubt that the defendant did not have a valid prescription. If the People have not met this burden, you must find the defendant not guilty of possessing a controlled substance.

If you conclude that the defendant possessed the controlled substance, that possession was not illegal if the defendant can prove the defense of momentary possession. In order to establish this defense, the defendant must prove that:
1. The defendant possessed the controlled substance> only for a momentary or transitory period;
2. The defendant possessed the controlled substance in order to abandon, dispose of, or destroy it;
3. The defendant did not intend to prevent law enforcement officials from obtaining the controlled substance.

The defendant has the burden of proving this defense by a preponderance of the evidence. This is a different standard of proof than proof beyond a reasonable doubt. To meet the burden of proof by a preponderance of the evidence, the defendant must prove that it is more likely than not that each of the three listed items is true.

Special Jury Instructions

The following case law may be of benefit in preparing special jury instructions to defend against a possession of controlled substance charge.

“[M]ore than mere presence [of the Defendant] must be shown in order to establish constructive possession [of a controlled substance] . . .”
Authority: Quoted language is from People v. Kolerich, 40 Cal. App. 4th 283, 295 (1993).

“[O]nly knowing possession of controlled substances is proscribed” by law. The prosecution must prove beyond a reasonable doubt that the defendant’s possession was a “knowing possession” of a useable substance – more than useless traces or residue – as an element of the crime of possession of a controlled substance since a nonknowing possession of a useable controlled substance is not a crime.
Authority: Quoted language is from People v. Rubacalba, 6 Cal. 4th 62, 66(1993).

“The essential elements of possession of a controlled substance are
(l) “[D]ominion and control of the substance;
(2) “[I]n a quantity usable for consumption or sale;
(3) “[K]nowledge of its presence; and
(4) “[O]f its restricted dangerous drug character.”
Authority: Quoted language is from People v. Palaschak, 9 Cal. 4th 1236, 1242(1995).

“In a prosecution for possession of a controlled substance, knowledge of the character of the substance possessed is an essential element of the crime.”
Authority: Exact quotation from People v. Coria, 21 Cal.4th 868, (1999).


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