“Possession” has a precise definition under California law. It is broader than what we normally think of as possession.
California crimes involving possession include (but are not limited to):
- Possession of a controlled substance, Health and Safety Code 11350 HS
- Possession of child pornography, Penal Code 311.11 PC
- Receiving stolen property, Penal Code 496 PC
- Possession of marijuana, Health and Safety Code 11357 HS
- Possession of drug paraphernalia, Health and Safety Code 11364 HS
- Possession of a fake driver's license or ID card, Penal Code 470b PC
- Possession of personal information (identity theft), Penal Code 530.5 PC
The Legal Definition of Possession
Under California law, it is possible to have “actual” or “constructive” possession of an item. You can also have “joint” possession of an item with one or more other people.1
You have “actual” possession of something when you hold it or have immediate access to it. This includes having it somewhere on your body, or in something you are holding or wearing.
Example: Martin keeps a switchblade in the pocket of his jacket. While Martin is wearing the jacket, he has “actual” possession of the knife.
You have “constructive” possession of something when you don't have immediate access to it – but you have control of it, or the right to control it.2 It might be in your house, or your car, or in the care of someone else.
Example: In the example above, Martin would still have “constructive” possession of the switchblade while the jacket was hanging in his bedroom closet – even if he was away from home at the time.
Two or more people can share either actual or constructive possession of a thing. This is known as “joint” possession.3
Example: Ashley is sharing some lines of cocaine with a friend. While they are chopping and snorting it, they both actually possess the drug – even though it is Ashley's cocaine.
Ashley later hides the rest of the coke in her refrigerator. The kitchen is shared by Ashley and three roommates. The roommates know that the cocaine is there and they don't object. Because they share control of the kitchen, they have joint constructive possession of the coke.
Knowledge of possession is usually required to convict you of a crime
- You knowingly possessed the unlawful item
- You knew of its unlawful nature4
Legal defenses to crimes involving possession
Being charged with illegal possession does not necessarily mean you will be convicted. There are many legal defenses a good California criminal defense lawyer can assert on your behalf.
- The item wasn't illegal
- You were legally entitled to possess the item
- The item wasn't yours
- You didn't have control of the item
- You didn't know the item was there
- You knew the item was there, but you didn't know what it was
- The item was discovered during an illegal search
Our criminal defense attorneys include former prosecutors and cops. We understand how to expose the holes in the prosecutor's case.
To help you understand the “elements of the crime” in a possession case, our criminal defense attorneys discuss the following, below:
1. “Actual” possession
You have “actual” possession of something when you have direct and immediate physical control over it. Examples of actual possession of an item include:
- you are holding or touching it
- it is concealed somewhere on your body
- it is in something you are wearing
- it is in something you are carrying – like a suitcase, a backpack or a purse
Actual possession usually occurs when the police catch you “red-handed.” But it may also be established by circumstantial evidence. So even if you swallow, flush, or throw an item away in order to avoid arrest, the prosecutor may be able to prove that you possessed it.5
Example: Dave buys four pills of Oxycontin (oxycodone HCl) from a friend. He puts them in the pocket of his shirt. Oxycodone is a controlled substance under California law.6 Possession of it without a prescription is a felony.7
Two cops witness the transaction and approach Dave and his friend to investigate. Dave sees them coming and panics. He swallows the pills. Unfortunately for him, the cops see him do it. After they find thirty pills of oxycodone on Dave's friend, they arrest Dave for possession of a controlled substance.
2. “Constructive possession”
2.1 The right to control an item
You do not have to have immediate access to an item to possess it. You have “constructive” possession of something when you have control over it… or the right to do so. Control may be exercised directly – e.g., the thing is in your house, your car, etc. It may also be exercised indirectly, through other people (your “agents” – see Section 4, below).8
Examples of possession based on the right to control an item include:
- You have it in your house
- It's inside your car
- It's in your office desk
- You stashed it in a hiding place in a public park
- You have someone purchase it on your behalf
- You have someone else hold it for you
- The item is in a place of business you rent or own9
2.2 Mere agreement to purchase something isn't enough
The mere agreement to purchase something illegal does not -- by itself -- give you control over an item.10 For instance, if you made a deal with someone to buy heroin tomorrow, you would not have constructive possession of it today.
2.3 Place you control with others
The exclusive right to control a place is strong evidence that you constructively possess what's inside it. But exclusive control of a place is not required. You can have constructive possession of an item you share with someone else, or that is kept in a place you share with others. (See “joint” possession, section 3, below).
Simply having access to a place where illicit items are kept, however does not automatically give you constructive possession of them.11
Example: Candice is at a party where people are using illegal drugs. When the police come in response to a noise complaint, they smell marijuana. A search of the house turns up a stash of drugs in a bathroom cabinet.
Candice was the last person to use the bathroom. However, merely having access to the bathroom does not give Candice constructive possession of the drugs. Unless the prosecutor can prove that the drugs were hers, Candice will is not liable for possession of a controlled substance.
2.4 Items in a different location than you
You do not have to be in the same place as an item to have constructive possession of it. The issue is whether you have the right to control it, even though you are not there.
Example: Leon, an ex-felon, keeps a gun in his desk drawer at the office. One day, while Leon is meeting with his parole officer, Leon's assistant goes looking for something in Leon's desk. She finds the gun and calls the cops.
Leon doesn't have immediate access to the gun at that moment. But because he has because the right to control his desk, he has constructive possession of whatever's in it. When he gets back to the office, he is arrested for being a “felon with a firearm.”
2.5 Places you don't exclusively control
It is possible to have constructive possession of something in a place shared with other people. In simple terms, the question is -- is the item yours?
California courts have held that if you hide something in a public place, you still have constructive possession of it. But just searching for something illegal in a public place is not enough to prove you ever had possession.
A couple of examples, based on the cases, should illustrate the difference:
Example 1: Parker hides a balloon full of heroin in some bushes in a public park. He knows where the hiding place is, and intends to come back and get them later. Even though it is in a public place, Parker retains constructive possession of the heroin.12
Example 2: Albert and Bob (“A” and “B”) are in the park one night. A has a vial of cocaine in his pocket. A and B see a cop approaching them. A throws the cocaine into the bushes to get rid of it. A nosy lady who lives across the street from the park witnesses the whole thing.
Later that night, B goes back to the park to look for the cocaine. After 15 minutes of searching, he gives up. The next morning, when it's light, he comes back and looks again. Nosy lady calls the cops. While one officer questions B, another quickly finds the vial. The cops arrest B for possession of a controlled substance.
However, nosy lady can't say for sure whether it was A or B who threw away the drugs. B doesn't have exclusive control of the bushes. Other than his searching for the cocaine, there is no evidence it ever belonged to him. If he had known where it was, a jury could reasonably conclude it was because he had hidden the vial there. However, B's long search for the vial suggests he was not the one who threw the cocaine away. As a result, they find that B did not have constructive possession of the cocaine.13
3. Joint possession
Two or people may possess something at the same time. Under California law, this is known as “joint” possession. You have joint possession of something when you and one or more other people share either actual or constructive possession of it.
Example 1: Jeanine's husband keeps child pornography on the computer the two of them share. Even though she doesn't know about the pornography, she shares control of the computer with her husband. Therefore, she and her husband share joint constructive possession of the child porn.
Example 2: Axel and Brian are roommates. Axel and Brian have acquired the materials to make a homemade bomb and are keeping those materials in the apartment they share. They have joint constructive possession of the materials to make a destructive device under Penal Code 18720 PC.
4. You knowingly possessed the item
Just possessing a legally prohibited item is usually not enough to convict you of a crime. The prosecution must prove that you knew that you had it.
There are many reasons why you might not know you have something illegal. Some possible explanations are:
Someone you live with has a prohibited item
Example: Someone you live with has a problem with substance abuse, and is keeping a secret stash of illegal drugs. You may not even know that the person is using, let alone that he/she has drugs in the house.
Someone else put the item in your backpack, luggage or clothing
Example: You are going on an out-of-state business trip with a co-worker. She wants to bring her medical marijuana out of California, but is afraid of being caught with it. She hides it in your luggage. She figures that if the Transportation Security Administration (TSA) detects it, you'll be the one to get the blame.
Someone accidentally left a prohibited item in your car
Example: Justin gives Maurice a lift home from school. Maurice accidentally leaves his backpack in Justin's car. Unbeknownst to Justin, there is a switchblade in it. Although Justin has possession of the switchblade, he is not guilty under of possessing it under Penal Code 21510.14
5. Possession through the acts of an agent
You do not need to exercise control of an item directly in order to possess it. You may be convicted of possession when your dominion and control of the item are exercised through one or more other persons.
5.1 Someone acting on your instructions
If someone obtains something illegal for you based on your instructions or approval, you are deemed to possess it.
Example: Martha tells Johnny she is going to see her coke dealer. She asks Johnny if he wants any. Johnny gives Martha $200 to buy some cocaine for him.
As soon as Martha purchases the drug, Johnny is deemed to have possession of it. It doesn't matter if he knows where Martha is -- or even that the sale has taken place. Martha is acting on Johnny's behalf and with his knowledge. Johnny is deemed to have dominion over the drugs – and, hence, constructive possession of them.15
Another way in which you might possess something is through conspiracy with one or more other people.16
Example: Mauricio is a gang member with a felony record. He is prohibited from possessing a gun under California Penal Code 29800 PC.17
Mauricio gives his girlfriend, Selena, money to buy a gun. Selena then gives the cash to Pedro, and puts him in touch with a seller. After Pedro makes the purchase, he telephones Selena. She gives him the address of Mauricio's mother and tells Pedro to drop the gun off there.
Selena never has control of the gun and never even sees it. Nevertheless, she is guilty of conspiracy to violate California's “felon with a firearm” law. A member of the conspiracy (Mauricio) was a felon, and another member of the conspiracy (Pedro) had control of the gun. Paula, therefore, legally has possession of it.
6. Possession of digital information or images
Under California law, possession of unlawful matter can include digital images and data.
Under child pornography laws, obscene “matter” includes information, data, and images in any format, including computer software or hardware.18
And under California laws prohibiting identity theft, unlawful matter includes not only factual information – like addresses and account numbers – but biometric data such as fingerprints, voiceprints, and retinal scans.19
7. You knew the unlawful nature of the item you possessed
Even if you knowingly possess an item, you still may not be guilty of a crime. You also have to know the nature of what it is that you possess.
This does not mean you have to be able to identify an object by name. It is enough that you know that the item is illegal in nature.
Example: For Danny's birthday, Patty gives him some “honey oil.” If Danny knows it is an illegal drug, he is guilty of possessing concentrated cannabis (hashish), even if he doesn't specifically know that's what drug it is.20
But if you genuinely don't know the illegal nature of an, you have a legitimate defense to possession of it.
Example: Bernard collects antique canes. Arthur sees an unusual looking cane at a thrift shop and purchases it for Bernard as a gift. Neither of them realizes that the cane is actually an illegal sword cane. Because they don't know of the cane's nature as a weapon, they are not guilty of possessing a “generally prohibited weapon” under Penal Code 20510.
8. Possession of lawful items with unlawful intent
Sometimes, an ordinary item can be used for an illegal purpose. A hammer can be used to break into a house. A baseball bat can be used as a weapon. Possession of these everyday items is not, however – in and of itself -- illegal.
But in certain circumstances, an everyday item can become illegal. One way this could happen is if the item has been modified for an illegal purpose.
Example: Carl keeps a baseball bat in his car. This is normally perfectly legal. But let's say that the last few inches of the bat have been broken off and the bat has been taped at that end. If the prosecutor can show Carl doesn't play baseball, the bat might count as a generally prohibited “billy” club under Penal Code 22210 PC.21
Another way an ordinary item can become illegal is if you intended to use it for a criminal purpose.
Example: A burglary has been committed by someone matching Terry's description. After Terry runs a red light, the police search his car and find a large number of tools in it. These include a flashlight, a crow bar, bolt cutters, and a sledge hammer.
There is nothing illegal about possessing any or all of these tools. But if the car also contains a hooded black sweatshirt, a ski mask, walkie-talkies, binoculars, and several dozen keys, it could be another story.
The tools and items – when taken as a whole – might constitute proof of criminal intent.22
9. Legal defenses to crimes involving possession
There are many legal defenses to crimes of possession. A good criminal defense attorney can help you formulate a plan. Some of the defenses an attorney might raise on your behalf include:
The item wasn't illegal
Example: Devon gets drunk at a bar and gets into a fight. The police arrest him for public intoxication under California Penal Code 647(f). When they search Devon after the arrest, they find a folded knife in his pocket. He is then also charged with violating California’s law against possessing a concealed dirk or dagger.23
However, under California Penal Code 21310 PC, a knife isn't a dirk or dagger unless it is capable of ready use as a stabbing weapon. Folding knives (other than switchblades) don't meet this definition, unless the blade is exposed and locked into position. Accordingly, Devon's knife is not illegal.
You were legally entitled to possess the item
Example: The police arrest Andy on suspicion of driving under the influence (DUI) of drugs. A search reveals several Vicodin in Andy's pocket. The cops arrest him for possession of a controlled substance, as well as the DUI.24
However, Andy has a prescription for Vicodin to treat a chronic back problem. When he produces proof of the prescription, the prosecutor drops the possession charge.25
You didn't have control of the item
Example: Jonathan and Kristen share a house. The police have a warrant to search the premises for child pornography. The police take a computer from the house, but it is password protected. After they bypass the protection, they find images of naked boys masturbating. They arrest Jonathan for possessing child pornography in violation of Penal Code 311.11.
Jonathan contends, however, that the computer belongs to Kristen and he doesn't have the password. Because the prosecutor can't prove otherwise, the charges against Jonathan are dropped.
You didn't know the item was there
Example: A stash of explosives is found in a house owned by Carol. Carol has leased the house to someone else for almost a year. Under the terms of the lease agreement, Carol has the right to enter the premises upon reasonable notice.
But because Carol doesn't live in the house, charges of constructive possession of a destructive device may not stick. Unless the prosecutor can prove that she knew about the explosives, Carol will be found not guilty of violating Penal Code 18710 PC.26
You knew the item was there, but you didn't know what it was
Example: Penny and Beth go out to the movies. Penny forgets to take her purse. She asks Beth if she can put her lipstick in Beth's purse. Beth agrees.
What Penny doesn't tell Beth is that the item is not actually a lipstick. It is a lipstick case knife, which is illegal under Penal Code 20610 PC.27 Because Beth doesn't know the lipstick case is really an illegal item, she is nit liable under Penal Code 20610.
The item was discovered during an illegal search
The Fourth Amendment to the U.S. Constitution protects you from unreasonable searches and seizures. If a search is deemed unlawful, items found during that search cannot be used to convict you of a crime. This is known as the doctrine of the “fruit of the poisonous tree.”28
This is a complicated subject, with many nuances and exceptions. For a more in-depth discussion, please see our article on California search and seizure laws.
Here are just a few ways, however, in which these laws might apply in possession cases:
Example: Amanda is stopped for running a red light. When the police pull her over, Amanda shows a valid driver's license and registration. She does not appear intoxicated.
The police see a large blanket covering something in the back seat. They ask Amanda if they can search the car. She refuses. The police get suspicious and remove the blanket anyway.
Underneath it they find a large quantity of heroin. They arrest Amanda for possession of a controlled substance.
This search violates Amanda's rights. The officers had no probable cause to suspect Amanda of a crime, and there were no exigent circumstances. Because the search was illegal, the heroin found during the search may be excluded from evidence.
But… let's say that while the police are talking to Amanda, they hear what sounds like a child screaming from beneath the blanket. Now there are exigent circumstances and they have probable cause to search the vehicle. Even if it turns out that the screaming was actually a bird in a cage, the heroin is probably going to be admissible.
As a final example, let's imagine that when the police stop Amanda, she appears intoxicated. After she fails a Breathalyzer and field sobriety tests, the cops arrest her for violating California DUI laws. Now they can legally search any areas of the vehicle under Amanda's immediate control. This includes the back seat. The heroin can now be used to prosecute Amanda for possession of a controlled substance in addition to the DUI.
Call us for help...
If you have a pending criminal case and are looking for legal representation, please don't hesitate to contact us at Shouse Law Group. Our California criminal law offices are located in and around Los Angeles, Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
Additionally, our Las Vegas Nevada criminal defense attorneys represent clients accused of violating Nevada's laws prohibiting possession of various items. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.
1 See, e.g., Judicial Council of California, Criminal Jury Instructions (CALCRIM) 2502: [Possession of a switchblade knife]: … [Two or more people may possess something at the same time.]
2 See, e.g., CALCRIM 2304 [Simple possession of a controlled substance]: … [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.]
See also People v. Showers (1968) 68 Cal.2d 639, 643-644 (“The accused has constructive possession when he maintains control or a right to control the contraband. Possession may be imputed when the contraband is found in a location which is immediately and exclusively accessible to the accused and subject to his dominion and control [citations]”).
3 E.g., CALCRIM 2304.
4 Same: The defendant is charged [in Count ] with possessing , a controlled substance [in violation of ].To prove that the defendant is guilty of this crime, the People must prove that:
- The defendant [unlawfully] possessed a controlled substance
- The defendant knew of its presence
- The defendant knew of the substance's nature or character as a controlled substance
See also People v. Prescott (1968) 257 Cal.App.2d 843, 65 Cal.Rptr. 366 (“The crime of possession of narcotics requires a physical or constructive possession of the narcotic substance plus an awareness of its presence and nature. (People v. Hokuf, 245 Cal.App.2d 394, 397, 53 Cal.Rptr. 828.)”).
5 See, e.g., People v. Palaschak (1995) 9 Cal.4th 1236, 1242-3. ("The additional, fortuitous fact that the defendant has consumed or ingested the drug likewise should not preclude a finding of his prior unlawful possession of it… If the evidence showed that the defendant was in possession of an illegal drug which he destroyed by flushing it down the toilet, it is clear that defendant nonetheless could be convicted of illegal possession based on evidence (whether direct or circumstantial) that the substance was in his possession immediately before he was arrested.” [citations])")
6 Health and Safety Code 11350(a): Except as otherwise provided in this division, every person who possesses (1) any controlled substance specified in subdivision (b) or (c), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055, or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code.
7 Health and Safety Code 11055 PC.
(a) The controlled substances listed in this section are included in Schedule II.
(b) Any of the following substances, except those narcotic drugs listed in other schedules, whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by combination of extraction and chemical synthesis:
(1) Opium, opiate, and any salt, compound, derivative, or preparation of opium or opiate, with the exception of naloxone hydrochloride (N-allyl-14-hydroxy-nordihydromorphinonehydrochloride), but including the following: … (M) Oxycodone…
8 See, e.g., CALCRIM 2502: [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.]
9 See People v. Showers, endnote 2 at 643-644. ("The accused has constructive possession when he maintains control or a right to control the contraband. Possession may be imputed when the contraband is found in a location which is immediately and exclusively accessible to the accused and subject to his dominion and control. [citations] The accused is also deemed to have the same possession as any person actually possessing the narcotic pursuant to his direction or permission where he retains the right to exercise dominion or control over the property. [citations]")
10 People v. Barnes (1997)57 Cal.App.4th 552, 67 Cal.Rptr.2d 162 (“We have found no authority which has established constructive possession based upon a bare agreement to purchase illegal contraband. We thus conclude that in the prosecution of an individual for the offense of possession of narcotics for purposes of sale, the nature and terms of such purchase agreements are more appropriately factors in determining whether the defendant has exercised the requisite control over the illegal goods.”).
11 See People v. Harrington (1970) 2 Cal.3d 991, 471 P.2d 961, Rehearing Denied (“Proof of opportunity of access to a place where narcotics are found will not, without more, support a finding of unlawful possession. (People v. Redrick, 55 Cal.2d 282, 285, 10 Cal.Rptr. 823, 359 P.2d 255.) But the necessary elements (that the accused exercised dominion and control over the drug with knowledge of both its presence and its narcotic character) may be established by circumstantial evidence and any reasonable inferences drawn from such evidence; and neither exclusive possession of the premises nor physical possession of the drug is required. [citations]”).
12 See People v. Cuellar (1952) 110 Cal.App.2d 273, 242 P.2d 694 (holding that defendant had constructive possession where he buried narcotics on a public playground and covered the hiding place with leaves).
13 Based on People v. Showers, endnote 2. (“Since there is no evidence that these persons jointly possessed the narcotic [citations], there must be substantial evidence that defendant alone possessed the narcotics… Considering the circumstances, particularly the great difficulty encountered by defendant in his search for the narcotic contrasted with the relative ease of the officer in locating it, it is unreasonable to infer from defendant's searches of the ivy that he was the one who placed the narcotic there.”)
14 CALCRIM 2502. The defendant is charged [in Count ] with unlawfully (possessing in a vehicle/carrying on (his/her) person/selling/offering or exposing for sale/giving/lending/transferring) a switchblade knife…
To prove that the defendant is guilty of this crime, the People must prove that:… 3. The defendant knew that (he/she) (possessed/carried/sold/offered or exposed for sale/gave/lent/transferred) it [to another person]…
15 People v. White (1958) 50 Cal.2d 428, 325 P.2d 985. (“[Agent] purchased the heroin as agent for [defendant] and pursuant to his express instructions, and [defendant], as the owner of the capsule, was entitled to exercise dominion and control over it. He had constructive possession as soon as the narcotic was acquired for him, and it is immaterial whether he had personal knowledge of the presence of the narcotic in the apartment.”)
16 See, e.g., People v. Morante (1999) 20 Cal.4th 403, 975 P.2d 1071.
17 Penal Code 29800(a)(1): Any person who has been convicted of a felony under the laws of the United States, the State of California, or any other state, government, or country, or of an offense enumerated in subdivision (a), (b), or (d) of Section 23515, or who is addicted to the use of any narcotic drug, and who owns, purchases, receives, or has in possession or under custody or control any firearm is guilty of a felony.
18 CALCRIM 1141: Matter means any representation of information, data, or image,including any (film/filmstrip/photograph/negative/slide/photocopy/videotape/video laserdisc/computer hardware or software/computer floppy disk/data storage medium/CD-ROM/computer-generated equipment/ [or] computer-generated image that contains any film or filmstrip).
19 Penal Code 530.5(c)(1): Every person who, with the intent to defraud, acquires or retains possession of the personal identifying information, as defined in subdivision (b) of Section 530.55, of another person is guilty of a public offense, and upon conviction therefor, shall be punished by a fine, by imprisonment in a county jail not to exceed one year, or by both a fine and imprisonment.
Penal Code 530.55(b): For purposes of this chapter, "personal identifying information" means any name, address, telephone number, health insurance number, taxpayer identification number, school identification number, state or federal driver's license, or identification number, social security number, place of employment, employee identification number, professional or occupational number,mother's maiden name, demand deposit account number, savings account number, checking account number, PIN (personal identification number) or password, alien registration number, government passport number, date of birth, unique biometric data including fingerprint, facial scan identifiers, voiceprint, retina or iris image, or other unique physical representation, unique electronic data including information identification number assigned to the person, address or routing code, telecommunication identifying information or access device, information contained in a birth or death certificate, or credit card number of an individual person, or an equivalent form of identification.
20 See People v. Garringer 48 Cal. App. 3d 827 (“The only knowledge that is required to sustain the conviction is knowledge of the controlled nature of the substance. (Russell v. Superior Court, 12 Cal. App. 3d 1114, 1117 [91 Cal.Rptr. 255].) The defendant need not know the chemical name or the precise chemical nature of the substance. “).
21 People v. Grubb (1966) 63 Cal.2d 614, 621 -- overruled on other grounds-- ("...possession of the altered baseball bat, taped at the smaller end, heavier at the unbroken end, carried about in the car, obviously usable as a ‘billy,' clearly not transported for the purpose of playing baseball, violates the statute.")
22 Facts based on People v. Southard (2007) 152 Cal.App.4th 1079.
23 Penal Code 21310 PC.
24 Penal Code 11350(a) PC, endnote 6.
26 CALCRIM 2570. Possession of Destructive Device (Pen. Code, § 18710)
The defendant is charged [in Count ] with unlawfully possessing a destructive device [in violation of Penal Code section 18710].
To prove that the defendant is guilty of this crime, the People must prove that:
- The defendant possessed a destructive device
- The defendant knew (he/she) possessed it
- The defendant knew that what (he/she) possessed was a destructive device
27 Penal Code 20610 PC. Except as provided in Chapter 1 (commencing with Section 17700) of Division 2 of Title 2, any person in this state who manufactures or causes to be manufactured, imports into the state, keeps for sale, or offers or exposes for sale, or who gives, lends, or possesses any lipstick case knife is punishable by imprisonment in a county jail not exceeding one year or imprisonment pursuant to subdivision (h) of Section 1170.
28 Wong Sun v. United States (1963) 371 U.S. 471.