Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FVI801812, John M. Tomberlin, Judge. Affirmed.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Steve Oetting and Meredith A. Strong, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
A jury found defendant Timothy Anderson guilty of possession for sale of cocaine base (Health & Saf. Code, § 11351.5, subd. (a)) (count 1); being under the influence of a controlled substance (§ 11550, subd. (a)) (count 2); opening or maintaining a place for selling or using a controlled substance (§ 11366) (count 3); and possession of a smoking device (§ 11364, subd. (a)) (count 4). Defendant admitted the additional allegation that he had suffered two prior drug-related convictions within the meaning of section 11370.2, subdivision (a). Defendant was sentenced to a total term of 10 years in state prison. On appeal, defendant contends (1) there was insufficient evidence to sustain his conviction for count 3, and (2) the trial court erred in failing to sua sponte instruct the jury on the meaning of “maintaining” and “opening.” We reject these contentions and affirm the judgment.
All future statutory references are to the Health and Safety Code unless otherwise stated.
I
FACTUAL BACKGROUND
On August 27, 2008, around 8:00 p.m., San Bernardino County Deputy Sheriffs Sean Streubing and Scott Nobles executed a search warrant at an apartment in Apple Valley. The search warrant was issued on suspicion of cocaine sales by defendant, who was operating under the street name “Blue.” At the apartment, the deputies found several clear plastic baggies, which are typically used for packaging narcotics. One of the baggies contained methamphetamine residue. They also found a digital scale and two methamphetamine smoking pipes. The baggies were found in a storage bin with writing on the outside indicating it was “Blue’s” property. The scale was on a shelf above the television in the bedroom and was functioning. One of the methamphetamine pipes was found in the bedroom in an eyeglass container, and the other was found under the kitchen sink. The deputies also found a bag containing methamphetamine.
Defendant’s girlfriend, Karen Lowe, who was partially deaf, was home at the time of the search. Based on information she had provided, after the deputies finished searching the apartment, they proceeded to 7th Street, where they contacted and ultimately arrested defendant. Defendant appeared to be under the influence and admitted he had smoked rock cocaine about 10 minutes prior to the deputies contacting him. A search of defendant revealed $139 in small denominations rolled up in his sock. The denominations were consistent with the sale of narcotics.
A blood test later revealed that defendant had amphetamines in his system.
After waiving his constitutional rights, defendant admitted to using between $80 and $100 worth of crack cocaine on a daily basis. A bundle of crack cocaine was found in defendant’s waistband. During the interview, defendant’s cell phone rang “constantly.” Deputy Nobles answered one of the calls, and the caller asked if he was working; Deputy Nobles said yes and the caller asked for “a 20 sack,” which is street slang for $20 worth of rock cocaine. Deputy Nobles opined that defendant had possessed the rock cocaine for the purpose of selling it.
With the aid of a sign language interpreter, Lowe testified that she had recently told defendant not to come home again because she was tired of people bothering her, and she did not like “what was happening.” Lowe explained that defendant constantly had friends coming over to her house and that these friends would often stay until 3:00 or 4:00 a.m. She had told defendant not to bring drugs into her home and claimed that she was unaware there were drugs in her home. Lowe confirmed that she had told the officers they could find defendant on 7th Street.
In return for her testimony, Lowe had agreed to plead guilty to a misdemeanor charge of being under the influence.
Lowe further stated that she had told defendant to leave her house because she had seen the scale and knew it belonged to defendant. She further said that defendant was always hiding things and that she knew he was hiding drugs. At one point, Lowe had encountered a woman in her bathroom using methamphetamine. On another occasion, Lowe had called the police because she did not like people at her house and “didn’t like what was happening at the house.” Lowe explained that people were frequently coming over to her house and hiding things behind her back and that when she was not at home, defendant “would always bring women into [her] house.” On other occasions, people would approach Lowe’s house and ask if she had “rock.” Because Lowe is deaf, she stated that when defendant had people over to the house, she could not hear what was going on.
Lowe also testified that on that afternoon, before the police came, she had found a bag of cocaine. She did not know what it was, so she tasted it and realized it was cocaine. In the two years that Lowe and defendant had been dating, defendant did not have a job, but he would come home with money. The money was in denominations of $10 and $20 bills.
II
DISCUSSION
A. Insufficiency of the Evidence
Defendant contends that his conviction for maintaining a place to sell or use drugs must be reversed because the evidence presented at trial was insufficient to support the verdict. We disagree.
“We often address claims of insufficient evidence, and the standard of review is settled. ‘A reviewing court faced with such a claim determines “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [Citations.] We examine the record to determine “whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citation.] Further, “the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.”’ [Citation.]” (People v. Moon (2005) 37 Cal.4th 1, 22.) The same standard of review applies when a conviction rests primarily on circumstantial evidence. (People v. Perez (1992) 2 Cal.4th 1117, 1124.)
Pursuant to section 11366, “[e]very 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.” As such, the elements of the offense include, “the defendant (a) opened or maintained a place (b) with a purpose of continuously or repeatedly using it for selling, giving away, or using a controlled substance. [Citations.]” (People v. Hawkins (2004) 124 Cal.App.4th 675, 680.) “To ‘open’ means ‘to make available for entry’ or ‘to make accessible for a particular purpose’ [citation], and to ‘maintain’ means ‘to continue or persevere in’ [citation]. When added to the word ‘place,’ the opening or maintaining of a place indicates the provision of such locality to others.” (People v. Vera (1999) 69 Cal.App.4th 1100, 1103.)
“The statute is aimed at places intended to be utilized for a continuing prohibited purpose and a single or isolated instance of misconduct does not suffice to establish a violation [of section 11366]. [Citations.]” (People v. Vera, supra, 69 Cal.App.4th at p. 1102.) However, evidence of a single instance, accompanied by “circumstances supporting a reasonable inference that the house was used for the prohibited purposes continuously or repetitively,” would support a conviction for maintaining a drug house. (People v. Hawkins, supra, 124 Cal.App.4th at p. 682.)
In People v. Shoals (1992) 8 Cal.App.4th 475, a search of the defendant’s motel room by four parole officers revealed 21 small baggies of cocaine base, a pager, and $533 in cash. (Id. at p. 481.) The appellate court found insufficient evidence supported the defendant’s conviction for maintaining the motel room for purposes of selling cocaine base in that the evidence showed the motel room was used as a bedroom and “a home for a woman, possibly a man, and children,” “there was no evidence of people visiting the place in unusual numbers or at unusual times,” there was “no evidence of people under the influence on or around the premises,” “there was no evidence of lookouts or the use of passwords or codes to gain access,” and “there was no drug paraphernalia or drug residue in the room.” (Id. at p. 492.)
Unlike Shoals, sufficient evidence supports defendant’s conviction. Lowe testified that defendant had been residing at the apartment with her for over two years and that during that time, defendant had many people at the apartment at odd hours of the night. She explained that she had recently told defendant not to come home again because she was tired of people bothering her, and she did not like “what was happening.” She had found the scale and noticed that defendant was hiding things, such as drugs, from her. She also clarified that defendant constantly had friends coming over to her house and staying until 3:00 or 4:00 a.m. While she was gone, defendant would bring people over, and on one occasion, she had caught a woman using methamphetamine in her bathroom. On another occasion, Lowe had called the police because she did not like the people at her house and “what was happening at the house.” On other occasions, people would approach Lowe’s apartment and ask if she had “rock.” Lowe’s testimony supports a reasonable inference that defendant had multiple people over at the apartment on a consistent basis to use or buy drugs.
The evidence also showed that during the search, the deputies found substantial evidence indicating drugs were sold at the apartment. Multiple plastic baggies were discovered at the apartment, one of which had drug residue in it. The deputies also found two methamphetamine pipes located in two different rooms and a functioning digital scale.
Defendant’s arguments to the contrary are unavailing. His contentions are entirely premised on inferences drawn in his own favor. However, we view the evidence in the light most favorable to the People and presume in support of the judgment every fact the trier of fact could reasonably deduce from the evidence. (People v. Lewis (1990) 50 Cal.3d 262, 277; People v. Johnson (1980) 26 Cal.3d 557, 576.) Additionally, the fact that the evidence showed that defendant sold drugs outside on the streets does not preclude the jury from determining that he had also maintained the residence for drug use and as an additional place for selling drugs.
Based on the foregoing, there was sufficient evidence presented that defendant maintained a residence for the purposes of using and/or selling drugs to support his conviction in count 3.
B. Instructional Error
Defendant next contends that the trial court erred in failing to sua sponte instruct the jury with the technical meanings of “opening” and “maintaining.” We find that jury was properly instructed.
The jury was instructed as follows: “The defendant is charged in Count 3 with maintaining a place for the sale of a controlled substance, sale or use of a controlled substance. To prove that defendant is guilty of this crime, the People must prove that, one, the defendant maintained a place; and two, that the defendant maintained the place with the intent to sell, use, or allow others to use a controlled substance, specifically methamphetamine and/or cocaine on a continuous or repeat basis at that place.”
Initially, we note that the jury was not instructed with “opening”; rather, the instruction and the People’s theory of the case was limited to “maintaining” a place for drug sales or use. Hence, we need not address defendant’s claim with respect to the term “opening.”
Defense counsel did not request an amplifying instruction as to the term “maintaining” at trial. On appeal, defendant asserts the term “maintaining” has a technical meaning peculiar to the law and that therefore the trial court had a sua sponte duty to define for the jury the term “maintaining” as it is used is this instruction.
The trial court has a duty to instruct the jury sua sponte as to the principles of law relevant to the issues raised by the evidence. (People v. Wims (1995) 10 Cal.4th 293, 303.) “When a term is commonly understood by those familiar with the English language and is not used in a technical sense peculiar to the law, an instruction as to its meaning is not required in the absence of a request.” (People v. Williams (1988) 45 Cal.3d 1268, 1314.)
In attacking Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 2440, defendant relies on People v. Shoals, supra, 8 Cal.App.4th 475. However, that case is distinguishable from this one. There, the appellate court considered a jury instruction essentially the same as the one given here, except that it did not require a finding of a specific intent to sell, give away, or use drugs on a repetitive or continuing basis. (Id. at p. 489.) The Shoals court held that this specific intent was an element of the crime which the words “opening” and “maintaining” standing alone failed to communicate to the jury; thus, the jury instructions should have defined these terms to make clear that a purpose of engaging in ongoing conduct must be found to convict the defendant of violating section 11366. (Shoals, at p. 490.) In other words, reading the statute to the jury did not clarify that it had to find the defendant possessed the specific intent to open or maintain the place for the purpose of continued use or distribution. (Ibid.)
In the present matter, the trial court did not merely read the statute. Instead, the court instructed the jury with CALCRIM No. 2440, which specifically stated that the jury had to find the defendant maintained the place with the intent to sell, use, or allow others to use a controlled substance on a continuous or repeat basis at that place. Therefore, unlike in Shoals, the jury instruction clearly communicated that the defendant had to have the requisite intent for the jury to convict defendant of violating section 11366.
This same exact issue was addressed, and rejected, by the Court of Appeal in People v. Hawkins, supra, 124 Cal.App.4th 675. In that case, the defendant argued that under the reasoning of Shoals, CALJIC No. 12.08, was inadequate because it did not include definitions of “opening” and “maintaining.” (Hawkins, at p. 684.) The Hawkins court found, “This argument is without merit. CALJIC No. 12.08 (the Comment to which cites Shoals) informs the jury that it must find a specific intent to sell, give away, or use on a repetitive and continuing basis. This tells the jury what specific intent it must find. It does so at least as well as and probably better than express definitions of ‘opening’ and ‘maintaining’ would do.” (Ibid.) Likewise, here, because the jury was instructed on the requisite intent, “maintaining” did not require a technical definition, notwithstanding the prosecutor’s comment suggesting it should. The jury was free to define the term “maintaining” in accordance with the term’s ordinary everyday meaning. (See CALCRIM No. 200 [“[w]ords and phrases not specifically defined in these instructions are to be applied using their ordinary everyday meanings”].)
CALJIC No. 12.08 mirrors the language of CALCRIM No. 2440 and provides in pertinent part, “In order to prove this crime, each of the following elements must be proved: [¶] 1. A person opened or maintained any place; and [¶] 2. That person did so with the specific intent to sell, give away, or use... on a repetitive or continuing basis.”
Defendant’s reliance on the prosecutor’s offhand comment telling the jurors that “opening” or “maintaining” should have been defined does not bolster defendant’s assertion here. Specifically, the prosecutor stated, “A lot of the instructions you get have definitions. This one didn’t, so I was looking at it. It said defendant opened or maintained a place. We know at Ms. Lowe’s place he lived there over two years. I submit to you that is maintaining. That’s the place you’re living at.” The court correctly instructed the jury on each of the elements it must find in order to convict defendant of violating section 11366.
In any event, any error in failing to sua sponte instruct on the definition of “maintaining” was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705].) As laid out above, there was more than overwhelming evidence to support the jury’s verdict that defendant had maintained a place with the intent to sell or use or allow others to use a controlled substance.
III
DISPOSITION
The judgment is affirmed.
We concur: McKINSTE, Acting P.J., KING, J.