Bowens

On this appeal from a judgment of conviction for possession of heroin (violation of Health & Saf. Code, § 11500), the main question presented is whether defendant has been denied his constitutional right to have the jury determine every material issue presented by the evidence. The determination of this question turns upon the giving of an instruction which omitted to state than an essential element of the crime charged was knowledge of the narcotic nature or character of the object possessed. The instruction given was in conformity to CALJIC Instruction No. 703 and reads as follows: “Within the meaning of the law, a person is in possession of a narcotic when he knowingly has the narcotic under his dominion and control, and to his knowledge, it is either carried on his person or is in his presence and custody, or if not on his person or in his presence, the possession thereof is immediate, accessible, and exclusive to him.” We have concluded that, although this instruction failed to instruct on the essential element of knowledge of the nature or character of the object possessed, such error, under the circumstances of this case, was not prejudicial but can be cured by invoking…