APPEAL from a judgment of the Superior Court of Los Angeles County. George Genesta, Judge. Affirmed in part, reversed in part, and remanded. (Los Angeles County Super. Ct. No. KA082841).
The opinion of the court was delivered by: Mosk, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Defendant and appellant David Garcia Franco (defendant) was arrested after an inspection of his apartment revealed a large quantity of drugs and drug paraphernalia. Defendant admitted to using the drugs, but denied that he sold or intended to sell them. A jury convicted defendant of maintaining a place for selling, giving away or using a controlled substance (Health & Saf. Code, § 11366).*fn2 The jury acquitted defendant on two counts of possession of a controlled substance for sale (§§ 11351, 11378), but convicted defendant of the lesser included offense of simple possession of a controlled substance (§§ 11350, subd. (a), 11377, subd. (a)).
In the published portion of this opinion, we hold that section 11366 is not violated by a defendant's personal use of a controlled substance in his or her own home, even if the defendant used drugs continuously or repeatedly. As relevant here, section 11366 is violated only if the defendant maintains a place for the continuous or repeated use of drugs by others. Accordingly, the trial court erred by giving the jury an instruction that permitted it to convict defendant for maintaining a place for his own personal drug use. We reverse defendant's conviction under section 11366 and remand for retrial on that count. In the unpublished portion of this opinion, we affirm the remainder of the judgment.
Defendant leased an apartment in a building on East 3rd Street in Pomona. The property management company responsible for the building had a policy of conducting biannual inspections of the apartments to determine the condition of the apartments and, in effect, to monitor whether tenants were complying with their leases. In April 2008, employees of the property management company discovered what they believed to be drugs in plain view during an inspection of defendant's apartment. They notified the police.
Defendant consented to a search of his apartment. On the bar in the kitchen area, police saw two lines of cocaine cut for use and two rolled dollar bills. There was another line of cocaine and a rolled bill in a bedroom. Police further searched the apartment and discovered: (1) four sets of electronic scales, two with a white powdery residue consistent with cocaine; (2) inositol powder, commonly used as a cutting agent for cocaine; (3) clear plastic baggies, commonly used as a packaging medium for narcotics; (4) a methamphetamine pipe; (5) a clear plastic bag containing 107 grams of cocaine; (6) a black plastic bag, inside of which was a plastic bag containing 39.5 grams of methamphetamine, a plastic bag containing 26.8 grams of cocaine, and several small wrapped baggies containing a total of 8.19 grams of cocaine; (7) a nine millimeter semiautomatic handgun, in a holster, with 20 live rounds, including a loaded magazine inserted into the weapon, one round in the chamber, and a fully loaded secondary magazine; (8) $503 in cash in a bag hanging on a bedpost; and (9) $3,526 stuffed between the mattress and box spring of a bed. The cocaine recovered by police had an estimated street value of $11,000, and the methamphetamine recovered had an estimated street value of $4,000.
Defendant presented evidence that the nine millimeter firearm and ammunition belonged to a friend who had asked defendant to hold them for safekeeping during a visit from the friend's relatives; the cash was from a restaurant defendant operated; and defendant was not putting money in the bank because he was in the process of getting a divorce. Defendant admitted that he started using drugs with his roommate, Daniel Zaragoza, shortly before his arrest, and that he was using cocaine heavily due to personal problems. Defendant denied selling drugs. Defendant testified that Zaragoza, a truck driver, left on a trip to Oklahoma a few days before defendant was arrested. Defendant testified that he was not aware that the electronic scales or the methamphetamine pipe were in the apartment.
Defendant was charged with one count of possession of a controlled substance with a firearm (§ 11370.1, subd. (a)) (count 1); two counts of possession of a controlled substance for sale (§§ 11351 [cocaine], 11378 [methamphetamine]) (counts 2 and 4); one count of maintaining a place for selling or using a controlled substance (§ 11366) (count 3); one count of possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)) (count 5); and one count of possession of ammunition by a felon (Pen. Code, § 12316, subd. (b)(1)) (count 6). The information also specially alleged pursuant to section 11370 that defendant had a prior drug conviction. The jury convicted defendant of the lesser included offense of possession of a controlled substance on counts 2 and 4, and convicted defendant as charged on all other counts.
The trial court sentenced defendant to a total prison term of four years and four months on counts 1, 4 and 6. The trial court stayed the sentences on counts 2, 3 and 5 pursuant to Penal Code section 654. The trial court also imposed various fines and penalties.
A. CALCRIM No. 2440 (Count 3)
Count 3 charged defendant with maintaining a place for the use of a controlled substance. (§ 11366.) Defendant contends the trial court's instruction omitted an element of the offense, which was that the place must be provided to others for use of the controlled substance. We agree.
Section 11366 provides in pertinent part: "Every person who opens or maintains any place for the purpose of unlawfully selling, giving away, or using any controlled substance . . . shall be punished by imprisonment in the county jail for a period of not more than one year or the state prison." "The proscribed `purpose' is one that contemplates a continuity of such unlawful usage; a single or isolated instance of the forbidden conduct does not suffice." (People v. Horn (1960) 187 Cal.App.2d 68, 72 (Tobriner, J.); People v. Vera (1999) 69 Cal.App.4th 1100, 1102 (Vera); People v. Holland (1958) 158 Cal.App.2d 583, 588-589 [must be "some purpose of continuity"]; see People v. 25651 Minoa Drive (1992) 2 Cal.App.4th 787, 799.)
Although defendant's trial occurred in September 2008, the trial court instructed the jury with an old version of CALCRIM No. 2440, dated January 2006. The trial court instructed, "The defendant is charged in Count 3 with maintaining a place for the sale or use of a controlled substance in violation of Health and Safety Code section 11366. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant maintained a place; [¶] AND [¶] 2. The defendant maintained the place with the intent to sell or use a controlled substance, specifically cocaine, on a continuous or repeated basis at that place."*fn4 Defense counsel approved the instruction and did not request any modification or clarification of the instruction.
During deliberations, the jury requested the following clarification of the instruction as to count 3: "Is the term `use' for private use or for customer use?" The trial court responded, "Refer to the language of Instruction # 2440 for the elements of the crime. [¶] . . . [¶] View these instructions in light of all the court's instructions." Defense counsel did not object to the trial court's response to the jury. The jury convicted defendant on count 3, but ...