Cole

Richard Andrew Cole appeals from a judgment of conviction for unlawful possession of cocaine (Health & Saf. Code, § 11350). We find merit in his assertion that a special defense instruction could have misled the jury concerning a material factor in his defense and that the trial court had a duty to correct it. Consequently, because of prejudicial error in jury instructions, we reverse and remand the case for retrial.

Facts

July 3, 1985, Officer Floriano, Detective Loniero, Sergeant James, and other officers searched appellant’s house and garage pursuant to a search warrant, and uncovered a safe containing $6,354.55 in currency, weights for a small scale, razor blades, a straw, a gold ring, a plastic ziplock bag of white powder and a similar bag containing white residue. When Officer Floriano, in Sergeant James’s presence, showed appellant the bag containing white powder, appellant said, “That’s for my personal use.” The bag contained .651 grams of an approximate 48 percent cocaine mixture. On a nearby workbench, Officer Floriano found a scale, a white powder covered microscope, several pieces of paper resembling bindles used to package cocaine, and a box of ziplock…