Criminal Law,  Juries

CALCRIM No. 2302 Survives Appellate Challenge

Revisions to jury instructions are generally supposed to make things easier for juries.  In People v. Montero, case no. C052423 (3d Dist. Oct. 2, 2007), the defendant contended that Judicial Council of California Criminal Jury Instructions (2006-2007), CALCRIM no. 2302, concerning the elements of the crime of possession for sale of a controlled substance, made it just a little too easy for the jury to convict because it allegedly does not require the jury to find that defendant “knowingly exercised control” over the controlled substance and for failing to use the term “dominion and control” in the element of possession.

(PDF download of entire CALCRIM available here.)

Comparing CALCRIM 2302 to the common elements of all drug possession offenses described in Witkin (2 Witkin and Epstein, Cal. Criminal Law (3d ed. 2000) Crimes Against Publivc Peace and Welfare, § 82, p. 592), the court finds CALCRIM 2302 stands up to both challenges raised by defendant.  It satisfies the requirement of knowledge by requiring knowledge of both the fact of possession (the jury must find that the defendant “knew of [the controlled substance’s] presence” and knowledge “of the substance’s nature as a controlled substance.”  Regarding “dominion and control,” the court finds the phrase “redundant and archaic,” notwithstanding its use in many opinions to describe possession.  The phrase “is merely a different way of saying the defendant possessed the substance physically or constructively.”  Thus, it is enough that CALCRIM 2302 instructs the jury that “[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.”

Read also: What you need to know about plea bargains.