Differential Differences Part II [U]nder California law, Possession Requires Knowledge.

Based on Part 1 Article Titled Differential differences, we point out element eccentric necessary to initiate removal proceedings as conviction not a complain or facts thereof.  Part 2 will look at overview elements requirement for controlled substance to violate State statue. This approach can be also applied in other areas of law that require Men’s rea.  All issues assented are opinions of the author, common sense dictate that you do your own research.     

Unlawful possession of a controlled substance for sale requires proof the defendant possessed the contraband with the intent of selling it and with knowledge of both its presence and illegal character.”

Video Credit: animateeducate Published on Jan 14, 2017

Moreover, California does not, criminalize the mere power to control the narcotic; instead, “the offender must knowingly control it with the specific intent to sell it or to have someone else sell it”. Sandoval-Venegas, 292 F.3d at 1107 (citation omitted).

Consequently, assuming that “L.I.O.” is applied correctly and charged under CHS § 11357 for simple possession[1] .  Federal law prohibits the simple possession of any amount of a controlled substance 21 U.S.C. § 844(a) However,  It is also noted that an individual could be assessed a civil penalty for possession of a “personal use amount” of marijuana for is first two violations. 21 U.S.C. 844 a (d). Thus, the individual could be fined for possession of a “personal use amount” of marijuana twice before he would be convicted of simple possession and subject to deportation.


As here, the crime is knowing and intentional possession of the controlled substance itself. See: United States v. Gamez-Gonzalez, 319 F.3d 695, 699-700 (5th Cir. 2003) (recognizing that a conviction under § 841(a)(1) requires knowledge that the substance was a controlled substance, but rejecting the argument that knowledge of the exact drug type or quantity is an element of the offense). United States v. Abdulle, 564 F.3d 119, 125-26 (2d Cir. 2009) (“[T]he law is settled that a defendant need not know the exact nature of a drug in his possession to violate § 841(a)(1); it is sufficient that he [or she] be aware that he [or she] possesses some controlled substance.”). The Suspect/defendant knowledge of what controlled substance he posses has no bearing on the Jury’s finding that he did in fact posses a specific controlled substance. See: CALJIC 12.21.]                                                                                                                                                 “Elements, as distinguished from means, are factual circumstances of the offense the jury must find unanimously and beyond a reasonable doubt.Omargharib, 775 F.3d at 198. (citations omitted). The elements of the offense possession with intent to sell a controlled substances are the possession thereof with knowledge of character of the substance not nature of the item (See: People v. Gory 28 Cal.2d P.453-454). Therefore possession with intent for sale controlled and knowledge thereof would be lacking and defendants would not have committed the offense charged.

[1] See: CHS § 11359 Jury instruction CALCRIM No.2352



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