Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County No. 30336B, John D. Kirihara, Judge.
Barbara Coffman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Wiseman, J.
Defendant Lisa Gay Davis was convicted, along with codefendant Mellon Moseley, of possessing methamphetamine for sale, maintaining a place for the sale or use of methamphetamine, and other charges. We agree with her claim that the trial court erred in excluding from evidence a statement Moseley made to a police officer during the trial. The error, however, was harmless. The excluded statement would have provided additional support to a defense Davis presented through other evidence. Yet it is not reasonably probable, under the circumstances of this case, that the added increment of support would have altered the outcome.
We reject Davis’s claims that the evidence was insufficient to support the convictions, that there was prejudicial error in the jury instructions, and that her trial counsel rendered ineffective assistance when, at the close of the prosecution’s case, she failed to join Moseley’s motion for acquittal. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORIES
Davis and Moseley were dating. He visited her at her apartment in Los Banos every day. Police suspected Moseley of drug offenses and obtained a search warrant targeting him at Davis’s apartment. Davis herself was not a suspect. Officers staked out the apartment on October 3, 2006, waiting for Moseley to arrive. He drove up in front of the building. The officers served the warrant and searched him. They found a .40 caliber bullet in his pants pocket and a glass smoking pipe in his boot. The pipe contained melted methamphetamine.
The officers knocked on the apartment door. When Davis answered, they ordered her to lie on the floor and handcuffed her. Near her on the floor, they spotted a black pouch, which contained a glass smoking pipe.
An officer searched the apartment’s only bedroom. Above the headboard of the bed, he found a red zippered pouch. It contained a digital scale and seven small bags, each containing a substance that appeared to be methamphetamine. On a “speaker box” in the bedroom the officer found another small bag containing a substance that appeared to be methamphetamine.
In a closet in the hallway, officers found a locked wooden box. An officer picked the lock and opened the box. Inside was some marijuana, another scale, and a plastic bag containing 30 to 40 smaller plastic bags. There was also a small bag of a substance appearing to be methamphetamine.
A total of nine bags containing what looked like methamphetamine—seven from the red pouch above the headboard, one from the speaker box in the bedroom, and one from the locked box—were sent to a state crime lab for testing. The contents of four of the bags were tested and found to be methamphetamine. The contents of the remaining bags were not tested.
The district attorney filed an information against Moseley and Davis as codefendants. The information charged both defendants with possessing methamphetamine for sale (Health & Saf. Code, § 11378); possessing marijuana for sale (Health & Saf. Code, § 11359); opening or maintaining a place for selling, giving away, or using a controlled substance (Health & Saf. Code, § 11366); and possessing drug paraphernalia (Health & Saf. Code, § 11364). The information charged Moseley alone with possessing ammunition while being prohibited to do so. (Pen. Code, § 12316, subd. (b)(1).) For sentence-enhancement purposes, the information alleged that Davis had committed a prior robbery. It alleged that Moseley had prior convictions for violations of section 11378 of the Health and Safety Code (possessing a controlled substance for sale) and section 243, subdivision (d), of the Penal Code (battery with serious bodily injury), had served a prior prison term, and was on bail at the time of the current offenses.
At the joint trial, a police expert, Owen Paul Johnson, opined that Davis and Moseley were both methamphetamine users. He thought Davis was a user because there was methamphetamine and paraphernalia in her apartment and because she had sores on her face and “just had the appearance of somebody that’s a heavy meth user.” His opinion about Moseley was based on the discovery of a smoking pipe in Moseley’s possession containing methamphetamine. Johnson also opined that the methamphetamine found in the apartment was there for the purpose of being sold. This opinion was based on the quantity of methamphetamine found; the presence of the scales and numerous small, unused plastic bags; and Davis’s statement that up to four or five people came to see Moseley at the apartment daily for brief visits. Johnson also believed the marijuana in the wooden box was being kept there for sale, since no means of smoking it were found in the apartment. There were no pay/owe sheets, large amounts of cash, pagers, or cell phones in the apartment, but drug dealers often keep money and pay/owe sheets in a separate location from the drugs themselves in order to avoid losing both in case of a raid.
Davis testified. When the police searched her apartment and arrested her, she had known Moseley for years and had been dating him for nine months. He had a key and came to her apartment every day and stayed overnight for up to a week at a time. She had trouble with her back and shoulder, so he helped her do housework and take care of her yard. He bought her groceries and a washing machine, sometimes paid utility bills, and once helped her avoid losing her apartment. He kept his clothes in the closet where the wooden box was found and had the exclusive use of that closet. Davis had no key to the box. She claimed she had no knowledge of Moseley’s dealings with drugs, never saw him use or sell drugs, had never seen the drugs the police found, and did not know that any drugs had been brought into her apartment. She was not aware even of the methamphetamine on the speaker box in plain view in her bedroom or the smoking pipe found near her on the floor when she was arrested. She acknowledged her statement to a police officer that as many as four or five visitors came to see Moseley for brief visits each day, but said she “pretty much stayed in the other room because it was a man thing, so to speak.” At some point, she told Moseley she did not like him having so many visitors. Moseley “said ‘Okay, no problem’ and he just stayed gone more often” after this conversation. Davis denied that she was a methamphetamine user and said the blemishes on her skin were caused by a reaction to hairspray and perfume and by the fact that she was having her menstrual period on the day she was arrested.
A recording of a telephone call Moseley placed to Davis from jail was played for the jury. Moseley and Davis said they loved each other. Moseley said, “I’ve made some mistakes, I’ve done some things wrong, and uh, I’ll make ‘em up to you.” The jury was also shown a letter Moseley wrote to Davis while he was in jail. In it, he wrote:
Davis read the letter aloud on the witness stand. A copy of the letter is in the clerk’s transcript for Moseley’s appeal, No. F052682. We take judicial notice of the record in that appeal.
“I have been saying since we got this shit throw at us, this all my doing .… I haven’t gone to court yet! When I do I will let the court (judge) know, you are not involved. I am told today I got to court. I will tell the judge OK. Baby, I know how much we love each other.… Remember, I’ll take all charges as soon as possible!”
Moseley never told the court Davis was not involved.
A police officer testified that Davis told him she believed Moseley was selling marijuana and that this explained his numerous visitors. At first, Davis told the officer she knew nothing about any methamphetamine in the apartment. After the officer told her she would be charged with possessing methamphetamine for sale, however, she said she had seen Moseley with methamphetamine in the apartment, as much as four ounces at a time. When Davis was questioned at trial about these statements, she denied making them. She claimed she told officers only that she thought Moseley smoked marijuana.
The jury found both defendants guilty of possessing methamphetamine for sale, opening or maintaining a place for selling, giving away or using a controlled substance, and possessing drug paraphernalia. Both defendants were found not guilty of possessing marijuana for sale but convicted of the lesser-included offense of simple possession of marijuana. Moseley was found guilty of possessing ammunition while prohibited to do so. Both defendants’ enhancement allegations were found true by the court.
The court sentenced Davis to two years eight months in prison, consisting of the lower term for possessing methamphetamine for sale, doubled because of the prior robbery, which was a strike within the meaning of the three-strikes law. The court imposed a concurrent sentence of two years eight months for opening or maintaining a place for the sale or use of a controlled substance. There was no additional term for the misdemeanor convictions of possessing marijuana and possessing drug paraphernalia.
The court sentenced Moseley to six years eight months in prison. This consisted of the middle term of two years for possessing methamphetamine for sale; a three-year enhancement pursuant to Health and Safety Code section 11370.2, subdivision (a); a one-year enhancement pursuant to Penal Code section 667.5, subdivision (b); and an eight-month term (one-third of the middle term) for possessing ammunition. The court imposed a concurrent two-year term and a concurrent one-year prior-prison-term enhancement for opening or maintaining a place for the sale or use of a controlled substance. It imposed a 90-day concurrent sentence for possession of marijuana and a 30-day concurrent sentence for possession of drug paraphernalia.
DISCUSSION
I. Exclusion of Moseley’s mid-trial statement to officer
During a recess, the prosecutor brought to the court’s attention a statement Moseley had made in the courtroom to Paul Llanez, a police witness:
“Apparently when we were in chambers discussing the foundational issues on the [prison letter from Moseley to Davis] that [Davis’s counsel] was attempting to introduce into evidence, Mr. Moseley leaned over and made a statement to Agent Llanez. Agent Llanez made me aware of and I felt that—compelled that, you know, it’s inculpatory in one respect and it’s exculpatory in another depending on which defendant you’re looking at. But here’s the gist of the statement made by Mr. Moseley to Agent Llanez and again, that was apparently in the presence of the jury. He said, ‘Llanez, between you and me and the fence post I’m putting this lady through a lot’ and then he says ‘I’m done with all this stuff. It’s no fun when the rabbit has a gun. That’s my angel up there.’ And that’s pretty much the end of it.”
Thinking Moseley’s statement supported Davis’s claim that she was not involved with the drugs, Davis’s counsel sought leave to question Llanez about it before the jury. Moseley’s counsel objected; he argued that the prejudicial effect of the statement substantially outweighed its probative value. Invoking Evidence Code section 352, the trial court agreed with Moseley’s counsel:
“THE COURT: I’m not going to allow the statement or the question to be asked about that statement made in court. I think it has some probative value arguably in different directions. I think it has some relevance. I think it’s highly prejudicial and reciting 352 again, it seems to me that under these circumstances the prejudicial effect far outweighs the probative value. I’m not going to let it in.”
Davis now contends the court erred. We review a decision to exclude evidence under Evidence Code section 352 for abuse of discretion. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)
The evidence was excluded improperly. As the court apparently acknowledged, Moseley’s statement that he was “‘putting this lady through a lot’” was relevant to Davis’s defense. A jury reasonably could find that it provided additional support for her claim that she was not a participant in Moseley’s drug dealing and therefore lacked the intent necessary to prove possession of methamphetamine for sale and opening or maintaining a place for the sale or use of methamphetamine. This was the probative value that weighed on one side of the scale under Evidence Code section 352.
What potential prejudicial effect was there to weigh on the other side? The only prejudicial effect to which Moseley’s counsel and the court might have been referring was that the jury reasonably could hear the statement as an admission of guilt on Moseley’s part. This kind of prejudicial effect cannot properly be considered as part of the section 352 analysis. The prejudice section 352 is designed to avoid is not the damage to a defendant’s case that arises from evidence of his guilt. (People v. Karis (1988) 46 Cal.3d 612, 638; People v. Crew (2003) 31 Cal.4th 822, 842.) Evidence should not be excluded because it is prejudicial in that sense.
The People argue that the evidence was prejudicial in another way. They say jurors could have inferred that Moseley “somehow corrupted [Davis], or was otherwise responsible for the charges brought against her” and that this could lead them “to convict Moseley not because of the evidence against him but because of his perceived reprehensibility in causing [her] plight.” This is a distinction without a difference. In light of all the evidence, a rational jury could not conclude that Moseley incurred responsibility for causing Davis’s plight unless it also found he committed the crimes. The fact that his guilt makes him appear reprehensible is not a reason for excluding evidence of it.
The People also argue that there was another valid ground the court could have chosen for excluding the statement under Evidence Code section 352. The statement was ambiguous, they argue, and the jury could have interpreted it to mean that Moseley put Davis “‘through a lot’” by convincing her to participate in the crimes, not by letting her take part of the blame for crimes in which she was not involved. If that was the statement’s meaning, it would not be exculpatory for Davis. Therefore, admission of the statement “would confuse the issues in the case and distract the jury from its consideration of more pertinent evidence.” We do not agree. Statements admitted into evidence are very frequently open to more than one interpretation. This alone does not make them confusing or distracting.
Despite these conclusions, the error was harmless. Davis argues that the harmless-beyond-a-reasonable-doubt test of Chapman v. California (1967) 386 U.S. 18 applies because the ruling deprived her of her constitutional right to present a defense; however, this is not correct. Where a trial court’s erroneous ruling does not constitute a refusal to allow a defendant to present a defense, but only rejects certain evidence concerning the defense, the error is nonconstitutional and is analyzed for prejudice under People v. Watson (1956) 46 Cal.2d 818—i.e., the judgment should be reversed only if it is reasonably probable that defendant would have obtained a more favorable result absent the error. (People v. Bradford (1997) 15 Cal.4th 1229, 1325; see also People v. Cudjo (1993) 6 Cal.4th 585, 610-612.)
We applied this rule recently in People v. Garcia (2008) 160 Cal.App.4th 124, 133. We held there that the trial court erred when it refused to issue removal orders to bring the defendant’s incarcerated witnesses to court unless the defendant first served subpoenas on the witnesses. (Id. at p. 126.) The facts to which the witnesses would have testified came into evidence through other witnesses and were essentially undisputed, so the defendant was not deprived of the opportunity to mount the defense their testimony would have supported. This meant the Watson standard applied. There was no reasonable probability that the defendant would have had a more favorable outcome absent the error, so the error was harmless. (People v. Garcia, supra, at p. 134.)
In this case, the court’s erroneous exclusion of Moseley’s mid-trial statement to Llanez was not a refusal to allow Davis to present a defense. It precluded the presentation of only one item of evidence supporting the defense. Other items were Davis’s testimony, Moseley’s letter, and Moseley’s comments during the telephone call. Since the mid-trial statement was only part of the evidence supporting the defense, the Watson standard for harmless error applies.
There is no reasonable probability that Davis would have obtained a better outcome if Moseley’s mid-trial statement had been admitted into evidence. The most important piece of evidence supporting Davis’s claim of noninvolvement was Moseley’s letter. Like Moseley’s mid-trial statement, the letter was an expression of Moseley’s view that responsibility for the crimes lay with him alone. Unlike the mid-trial statement, the letter was explicit and unambiguous on this point. Having read the letter, the jury still rejected Davis’s claim that she lacked the intent necessary to support the conviction. It is not reasonably probable that the jury would have come to a different conclusion if it had heard about Moseley’s mid-trial statement.
II. Sufficiency of evidence
Davis contends that the evidence was insufficient to prove that she was guilty of possessing methamphetamine for sale and opening or maintaining a place for selling, giving away, or using a controlled substance. When the sufficiency of the evidence is challenged on appeal, “the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d. 557, 578.)
A. Possession for sale
To obtain a conviction of possession of a controlled substance for sale, the prosecution must prove that the defendant (1) had actual or constructive possession of the substance; (2) had the intent to sell it; (3) knew of its presence; and (4) knew of its character. (Williams v. Superior Court (1974) 38 Cal.App.3d 412, 421.) Davis argues there was insufficient evidence that she knew of the methamphetamine or had the ability to control it. This claim is refuted by the presence of seven packages of methamphetamine and a scale in a pouch above the headboard of her bed and an eighth package lying out in plain sight in her bedroom. This was strong circumstantial evidence of her knowledge and control, which may be established by circumstantial evidence and reasonable inferences drawn from it. (People v. Newman (1971) 5 Cal.3d 48, 52, overruled on other grounds by People v. Daniels (1975) 14 Cal.3d 857, 862.)
Davis also argues that there was insufficient evidence of her intent to sell. Again, from those eight small packages and the scale the jury reasonably could infer an intent to sell. A police expert testified that a user with no intent to sell would not typically have so many separately packaged doses in reserve. The intent-to-sell element of possession for sale can be proved by opinion testimony regarding quantity and packaging. (People v. Newman, supra, 5 Cal.3d at p. 53.) From the presence of these items beside Davis’s bed, the jury reasonably could infer that Davis shared in this intent.
Davis points to her claims that she had no access to the contents of the wooden box (which included additional methamphetamine, another scale, and empty plastic bags) and that she asked Moseley to reduce the number of visitors to the apartment. The existence of some evidence supporting the defense does not show that there was insufficient evidence to support the conviction, however. The jury reasonably could have disbelieved Davis’s claims or found the evidence against her more persuasive. The evidence was sufficient to support Davis’s conviction.
B. Opening or maintaining a place for use or sale
To obtain a conviction of opening or maintaining a place for the purpose of unlawfully selling, giving away, or using a controlled substance, the prosecution must prove that the defendant (1) opened or maintained a place and (2) had the purpose of continuously or repeatedly using the place for selling, giving away, or using a controlled substance. (People v. Hawkins (2004) 124 Cal.App.4th 675, 680.) Davis argues that the evidence failed to prove she had the specific intent to repeatedly use her apartment for selling, giving away, or using methamphetamine. Relying on People v. Vera (1999) 69 Cal.App.4th 1100, 1103, she also argues that a purpose of engaging in repeated sales or of providing a place for repeated use by others must be proved—maintaining a place for repeated use by a defendant does not establish the offense—and that there was insufficient evidence this occurred.
Davis also contends that there was insufficient evidence to show repeated actual sales, but that is not an element of the offense. Opening or maintaining a place for the purpose of engaging in repeated sales or use is the crime.
The evidence was sufficient to show that Davis maintained her apartment for the purpose of repeated sales of methamphetamine. As we have discussed, there was sufficient evidence to show that Davis possessed methamphetamine in her apartment for the purpose of selling it. The evidence also proved that the apartment was where the sales took place—i.e., that Davis did not possess it there for the purpose of selling it somewhere else. Davis testified that as many as four or five visitors came to the apartment daily. A police officer testified that Davis said she knew Moseley had methamphetamine in the apartment and had seen him with up to four ounces at a time. An officer also testified that, during the raid on Davis’s apartment, a man who did not live at the apartment came to the door. Officers asked him if he was there to buy methamphetamine. The man lowered his head and made no reply. From all this evidence, the jury reasonably could infer that Davis had a specific intent to use the apartment for the purpose of repeated sales of methamphetamine. Davis denied making the statements attributed to her by the officer. She said she knew nothing of the methamphetamine and claimed she wanted Moseley to stop having so many visitors; however, the jury reasonably could decide to disbelieve that testimony.
Since there was sufficient evidence to prove that Davis maintained the apartment for the purpose of repeated sales, we need not discuss her claim that the evidence failed to show a purpose of allowing repeated use by others as opposed to use by Davis herself.
III. Acquittal motion
Davis contends that her trial counsel rendered ineffective assistance when she failed to join a motion for acquittal filed by Moseley pursuant to Penal Code section 1118.1 after the prosecution completed its case-in-chief. This motion requested acquittal of the charges of possessing methamphetamine for sale, possessing marijuana for sale, and opening or maintaining a place for selling, giving away, or using a controlled substance. The court denied the motion.
To establish ineffective assistance of counsel, defendant must show that counsel’s performance “fell below an objective standard of reasonableness,” and that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland v. Washington (1984) 466 U.S. 668, 688, 694; see also People v. Hester (2000) 22 Cal.4th 290, 296.) It is not necessary to determine whether counsel’s challenged action was professionally unreasonable in every case, however. If the reviewing court can resolve the ineffective-assistance claim by first deciding whether there is a reasonable probability that the outcome would have been different absent counsel’s challenged actions or omissions—it may do so. (Strickland v. Washington, supra, at p. 697.)
The motion Davis claims her trial counsel should have joined asserted that the prosecution presented insufficient evidence to prove the charges. When a defendant challenges the denial of a motion for acquittal made at the close of the prosecution’s case, we test the sufficiency of the evidence based on the prosecution’s presentation up to that point. (People v. Cole (2004) 33 Cal.4th 1158, 1211-1213; People v. Huggins (1997) 51 Cal.App.4th 1654, 1656.)
On the first count, possession of methamphetamine for sale, the prosecution’s case included sufficient evidence to support the conviction. The evidence we discussed above in rejecting Davis’s claim of insufficient evidence of this crime was all presented in the prosecution’s case-in-chief. Since the court properly would have denied a motion by Davis to acquit on this count, Davis’s counsel could not have obtained a better outcome by joining Moseley’s motion, and her failure to do so did not constitute ineffective assistance.
On the second count, possession of marijuana for sale, Davis could not have obtained a better outcome, for she was acquitted of that count. She does not claim the prosecution’s case-in-chief failed to establish the lesser charge of which she was convicted, simple possession of marijuana.
The prosecution also presented sufficient evidence in its case-in-chief of the third count, opening or maintaining a place for selling, giving away, or using a controlled substance. Except for Davis’s testimony that as many as four or five visitors came to the apartment daily, all the evidence we discussed above in rejecting Davis’s claim of insufficient evidence of this crime was presented in the prosecution’s case-in-chief. Essentially the same point was made in the prosecution’s case-in-chief when an officer testified that Davis told him there were many visitors to the apartment. Again, because the court properly would have denied an acquittal motion by Davis on this count, her trial counsel did not render ineffective assistance by not joining Moseley’s motion.
IV. CALCRIM No. 2440
Davis argues that the court gave an erroneous instruction that omitted an element of the offense of opening or maintaining a place for using, selling, or giving away a controlled substance. Neither defendant objected to the instruction at trial, but a trial court in a criminal case is required—with or without a request—to give correct jury instructions on the general principles of law relevant to issues raised by the evidence. (People v. Michaels (2002) 28 Cal.4th 486, 529-530.) Further, an appellate court can address an incorrect instruction to which no objection was made at trial if the instruction impaired the defendant’s substantial rights. (Pen. Code, § 1259.) If an instructional error omits or improperly describes an element of an offense, the error is subject to harmless-error review under the standard of Chapman v. California, supra, 386 U.S. 18—i.e., the error is reversible unless it appears beyond a reasonable doubt that it did not contribute to the verdict. (People v. Lamas (2007) 42 Cal.4th 516, 526; People v. Mayfield (1997) 14 Cal.4th 668, 774.) The error did not contribute to the verdict if it was “‘unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.’” (People v. Mayfield, supra, at p. 774.)
The court instructed the jury as follows, consistent with Judicial Council of California, Criminal Jury Instructions (CALCRIM) No. 2440:
“The defendants are charged in Count 3 with maintaining a place for the sale or use of a controlled substance.
“To prove that a defendant is guilty of this crime, the People must prove that: Number One, the defendant maintained a place; and Number Two, the defendant maintained the place with the intent to sell or use a controlled substance, specifically methamphetamine on a continuous or repeated basis at that place.”
Davis contends that this instruction is erroneous because it allows a conviction based on a defendant’s maintenance of a place for his or her own continuous use of drugs. It does not state that the defendant’s purpose must be to maintain the place for others’ use.
The statute defining the offense, Health and Safety Code section 11366, does not expressly require that the drug use in question be that of others, as opposed to that of the defendant himself or herself alone. It provides: “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.” On the other hand, at least one case states that a conviction cannot be based on the defendant’s intent to maintain a place merely for his or her own drug use: In People v. Vera, supra, 69 Cal.App.4th 1100, the Court of Appeal held that a violation of section 11366 is a crime of moral turpitude because it necessarily involves an intent to corrupt others.
“We do not read this section to cover mere repeated solo use at home. 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. [¶] … [¶] It is true that a violation of section 11366 may be committed by opening or maintaining a place for the sole purpose of unlawfully ‘using,’ as opposed to ‘selling’ or ‘giving away,’ specified controlled substances or narcotic drugs. However, regardless of which of those prohibited purposes is actually involved, the place is intended to be provided to others for that prohibited purpose. Thus, unlike an offense of simple possession, a violation of section 11366 necessarily evidences moral turpitude because it involves the intent to corrupt others.” (People v. Vera, supra, 69 Cal.App.4th at p. 1103.)
We, however, do not need to decide whether CALCRIM No. 2440 is erroneous because it omits to say that a conviction based on maintaining a place for drug use, as opposed to drug sales, must involve an intent that others besides the defendant will use drugs in the place. Any error was harmless beyond a reasonable doubt because the prosecution proved a violation based on Davis’s intent to sell the drugs repeatedly at her apartment, not merely to use them repeatedly. The jury necessarily found an intent to sell when it found Davis guilty of possession for sale. The evidence was strong that there was an intent to sell repeatedly at the apartment: there were multiple, prepackaged doses, scales, unused packaging material, and numerous daily visitors. Since the prosecution proved that Davis maintained a place for the purpose of repeated sales of methamphetamine, we conclude beyond a reasonable doubt that any error in the instruction regarding how to establish the crime based on repeated use was harmless.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Vartabedian, Acting P.J., Hill, J.