Opinion
H024414.
10-10-2003
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM GEORGE FRITZ, Defendant and Appellant.
A. INTRODUCTION
A jury found defendant William George Fritz guilty of possessing MDMA (Health & Saf. Code, § 11377, subd. (a)), being under the influence of methamphetamine (§ 11550, subd. (a)), and maintaining a place for drug use or sales (§ 11366). He was sentenced to an aggregate term of two years in prison.
3, 4-methylenedioxy methamphetamine is commonly known as ecstasy.
Hereafter, all undesignated statutory references are to the Health and Safety Code.
On appeal defendant contends that there is insufficient evidence to support his conviction for maintaining a place for drug use or sales. (§ 11366.) Defendant also contends that when the jury asked for a definition for "maintenance," the trial court erred by simply repeating the language of CALJIC No. 12.08. We shall affirm.
B. FACTS
Defendant was arrested following a search of his house on June 21, 2001. Defendant occupied the second-floor master bedroom where there was also a bathroom and an entertainment loft area. There were three bedrooms on the first floor. Robert Snyder lived in one of them; Stanley Vargas lived in another; and the third bedroom on the first floor appeared to be unoccupied.
Defendant operated a construction company from his garage. He employed both Snyder and Vargas. Many of defendants employees were ex-felons with drug-related criminal records who had been referred by drug rehabilitation agencies. Snyder had been referred by defendants former girlfriend, Tina Hudson, who had lived in the house before Snyder moved in.
Snyder moved into defendants house about eight weeks before the search. Shortly after he moved in he installed a deadbolt lock on the door to his room. One night he inadvertently locked defendants dog in his bedroom and defendant was forced to break down the door in the middle of the night to get the dog out. The next day Snyder took the kitchen door off its hinges and used it to replace his broken bedroom door. He incorporated the deadbolt into the replacement door. Defendant claimed that Snyder did all this without his permission.
Sometime prior to the search, defendant had asked Snyder to move. Defendant was moved to that decision after Snyder removed the kitchen door and also by the fact that Snyder was "kind of a night person." Snyder tended to run business errands in the evening but would not return home until 4:30 in morning. This schedule made him ineffective during the regular workday.
Police obtained a warrant to search defendants house after a confidential police informant reported once purchasing methamphetamine and negotiating other drug purchases there on numerous occasions. Narcotics officers conducted confirming surveillance of the house for about eight weeks prior to the search on June 21, 2001. During the surveillance Officer Matt Frisby observed a lot of foot traffic that tended to suggest drug dealing. He said that persons would come and go through the front door, staying only for a short period of time. Often people would pull up in a car and one person would stay in the car while the other would go in the house briefly and then leave.
Defendant himself had a drug-related criminal history, which he admitted at trial. Defendants prior drug convictions included a 1983 conviction for sale of cocaine (§ 11352), a 1990 conviction for possession of a controlled substance (§ 11377) and being under the influence of a controlled substance (& sect; 11550), a 1997 conviction for being under the influence (& sect; 11550), and a 1999 conviction for possessing methamphetamine (& sect; 11377) and being under the influence (§ 11550, subd. (a)). Defendants girlfriend, Melanie Voorhees had not been "clean and sober" in the over 20 years he had known her. Hudson, his former girlfriend, was also addicted to drugs. The police informant who bought drugs from Snyder reported that defendant had been present at one or more of their drug-sale negotiations.
When the police entered the house on the morning of the search they found defendant and Voorhees still in bed. There was a small amount of cocaine inside a model car in the master bathroom, two tablets of MDMA in a prescription bottle bearing defendants name in a small refrigerator in the bedroom, and a Tenita scale inside a leather case in the loft.
Downstairs in Snyders room officers found more than 57 grams of methamphetamine wrapped in cellophane and hidden in a speaker. There was also $800 in cash, pay/owe sheets, and cellophane bags. A bit of cellophane similar to that found in Snyders room was located in the kitchen garbage can. Vargass room yielded a jewelers scale, a jewelers bench, old packaging material, and empty bags with a powdery residue that police suspected was methamphetamine. The third bedroom contained three small packages of methamphetamine and defendants expired drivers license. There was a postal scale in the kitchen near the garage office and a similar scale in the office itself among other business supplies.
Six video cameras were posted in and around the house. There were two on the roof, one at the entrance, one overlooking the driveway, another posted by the side yard, and the sixth was in the process of being installed in the stairway leading to defendants bedroom on the second floor. There were two video monitors in defendants bedroom. Most of the video surveillance equipment was not operational at the time of the search. According to defendant this was because he was in the process of getting the house painted.
Frisby characterized much of the evidence uncovered during the search as consistent with a drug sales operation. He stated that the Tenita scale found in the loft adjacent to defendants bedroom was a type commonly used to weigh drugs. He was certain the small packages of methamphetamine (found in the first floor bedroom where defendants expired license was recovered) were held for sale.
Defendant, Snyder, and Voorhees were all arrested. Defendant tested positive for methamphetamine. Snyder pled guilty to possessing methamphetamine for sale and maintaining a place for the unlawful use or sale of drugs. Voorhees admitted having used cocaine the night before the search and claimed that the cocaine found in the master bathroom was hers. While testifying at trial she mentioned that she had been arrested twice while at defendants house.
Alexandra Lynch met defendant through Voorhees. Lynch testified that she and Voorhees had purchased drugs from defendant on five or six occasions in the past. The drug transaction usually began with a meeting at the Branham Lounge. Lynch and Voorhees would then drive to defendants house and Voorhees would go in and get the drugs while Lynch waited in the car. One time Lynch did go into the house. She and Voorhees met with defendant in an office on the first floor. Lynch saw Voorhees give defendant money and saw defendant take cocaine from a drawer and give it to Voorhees. The last sale for which Lynch was present was about seven months prior to defendants arrest.
Defendant admitted to being an "opportunistic" or recreational drug user. He visited his brother a few days before his arrest and "did a line" with him then. He was aware that Voorhees ingested cocaine just hours before the search. And he admitted that he knew a lot of people who used and sold drugs. He told one of the police officers that many people he did not know came by to see Snyder at the house and would only stay for a short time. Defendant also told the officer that he knew many of those visitors were drug users, and that he was not surprised that the police raided his home; he only wondered why it took them so long. Mark Loomis, who was one of defendants employees at the time of the arrests, testified that Snyder had "freely admitted" that he sold drugs.
Defendant claimed at trial that he was unaware that Snyder had been selling drugs from the house. He said that he had a "no drug" policy in his business and that he hired ex-drug offenders to give them a second chance. At odds with his "no drug" policy was defendants policy, which was well known to his friends, to flush down the toilet any drug that was left over after he and his guests had ingested their fill.
C. PROCEDURAL BACKGROUND
The information charged defendant, Snyder, and Voorhees with nine counts. As to defendant, the matter went to trial on five of them: possessing methamphetamine for sale (§ 11378) (count 1), possessing cocaine (§ 11350, subd. (a)) (count 4), possessing MDMA (§ 11377, subd. (a)) (count 5), maintaining a place for the unlawful use or sale of a controlled substance (& sect; 11366) (count 6), and being under the influence of methamphetamine (& sect; 11550, subd. (a)) (count 9).
After deliberations began, the jury returned asking for the definition of "maintenance." The jurys question presumably referred to count 6, the crime of maintaining a place for illegal drug activity. With the concurrence of both counsel the trial court re-read the relevant instruction but did not provide an additional explanation of "maintenance."
The jury found defendant not guilty of counts 1 and 4, possessing methamphetamine for sale and possessing cocaine. The jury found him guilty of counts 5, 6, and 9. This appeal focuses solely upon count 6, maintaining a place for the unlawful use or sale of a controlled substance. (§ 11366.)
D. ISSUES
1. Was the evidence sufficient to convict defendant of violating section 11366?
2. Is reversal required because the trial court did not give the jury a definition for "maintenance" when they asked for one?
E. DISCUSSION
1. Sufficiency of the Evidence
Defendant contends that his conviction for count 6 must be reversed because there is insufficient evidence in the record that he maintained his home for selling, using, or giving away a controlled substance.
When a criminal defendant challenges a conviction on the ground that the evidence is insufficient, the question is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt. The appellate court decides only whether a reasonable trier of fact could have found that the prosecution sustained its burden of proving guilt beyond a reasonable doubt. (People v. Arcega (1982) 32 Cal.3d 504, 518.) In applying this test, the appellate court must presume in support of the judgment the existence of every fact the trier could reasonably have deduced from the evidence. (People v. Fosselman (1983) 33 Cal.3d 572, 578.) We review the record in the light most favorable to the prosecution to determine whether it discloses substantial evidence, i.e., evidence that is reasonable, credible, and of solid value. (People v. Johnson (1980) 26 Cal.3d 557, 576.)
Section 11366 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 state prison." To open or maintain a place implies that the defendant has made the place available to others on a continuous or repetitive basis for the unlawful purpose described in the statute. (People v. Vera (1999) 69 Cal.App.4th 1100, 1103; People v. Shoals (1992) 8 Cal.App.4th 475, 491 (Shoals).) Section 11366 does not require that the place be maintained for the purpose of selling. It may be violated merely by providing a place for drug abusers to gather and share the experience of using drugs. (People v. Vera, supra, 69 Cal.App.4th at p. 1102 citing People v. Green (1988) 200 Cal.App.3d 538, 544.) Although there is no requirement that the place be maintained solely for the unlawful activity, defendant must have maintained the place with the specific intent that it be used for the unlawful purpose. (§ 11366.)
Defendant does not dispute that drug sales and use occurred at his house. His argument is primarily that he did not know about the drug sales and thus that there is insufficient evidence to support a finding that he intended to maintain his house for that purpose. He also argues that the evidence that drugs were used at the house is insufficient to support a finding of continuous or repetitive use. We find ample evidence to support the guilty verdict.
There is sufficient evidence that defendant permitted drug sales and the use of drugs in his home on a repetitive, continuing basis. First, as to the sale of drugs, the evidence supports the inference that defendant knew and permitted Snyder to engage in the drug business from his first-floor bedroom. Defendant admittedly had a great deal of experience with drugs and drug culture. He admitted using drugs for the past 20 years. He had a drug-related criminal record. He knew lots of people who used or sold drugs. His last two girlfriends had drug problems. And he surrounded himself with people who had drug-related criminal records. Defendant was aware of Snyders late night absences, his insistence upon securing his room with a deadbolt, the presence of six surveillance cameras about the house (with monitors in defendants bedroom), and the foot traffic in and out of the house at all hours. Under these circumstances, and given defendants background and experience, it is reasonable to infer the he knew that illegal drug activity was being conducted in his house. In addition, Lynch had observed defendant himself sell drugs in a downstairs office and the confidential informant reported that defendant had been present when the informant had negotiated drug sales at the house.
That defendant knew and condoned others use of drugs at the house is amply supported by evidence that defendant saw Voorhees use cocaine just the night before the search and that he had permitted both Hudson and Voorhees to either live or stay in the house knowing that they both were addicted to drugs. Further, Voorhees admitted to having been arrested twice at the house. And defendant effectively admitted that he allowed others to use drugs at his house when he described his well-known policy of insisting that guests flush the remainder of their drugs down the toilet once they had ingested as much as they wanted.
This is sufficient evidence to support a finding that defendant opened and maintained the house for the purpose of allowing others to buy, sell, or use drugs there.
2. Definition of "Maintenance"
The trial court instructed the jury in the language of CALJIC No. 12.08: "Defendant is accused in Count 6 of having committed a violation of Section 11366 of the Health and Safety Code, a crime. Every person who opens or maintains any place for the purpose of unlawfully selling, giving away, or using any controlled substance or narcotic drug, is guilty of a violation of Health and Safety Code Section 11366, a crime. In order to prove this crime, each of the following elements must be proved: One, a person opened or maintained any place; and, two, that person did so with the specific intent to sell, give away, or use a controlled substance or narcotic drug on a repetitive or continuing basis." The court also informed the jury that there must exist a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator and that, unless this specific intent exists, the crime to which it relates is not committed.
When the jury asked the court to define "maintenance" the court told them that there was no definition of "maintenance" in the pattern jury instructions but that "maintains" and "maintained" appear in CALJIC No. 12.08, which was the instruction they had been given. The court re-read the instruction and after doing so continued: "Thats where the word is used. There is nothing about maintenance. [¶] If you go by the jury instruction it says-well, these people try to use good grammar, `Every person who opens or maintains, thats in the first part. The second one, `In order to prove this crime, each of the elements must be proved, and the first is `opened or maintained any place. `Maintains, its just like-its a word. I cant define it for you." The foreperson asked: "Could we look it up-," to which the court replied that they could not. The court then said: "I think weve never had a problem with this instruction before, so I dont know what else to tell you. [& para;] The second element is `That person did so with the specific intent to sell, give away, or use a controlled substance or narcotic drug on a repetitive or continuing basis. You have to read it altogether. Okay. Do you want me to read it again?" The jury evidently responded in the negative because the court proceeded to the next question.
Defendant argues that the trial court should have given the jury further explanation of the word "maintenance." We disagree.
We disregard claim II discussed in defendants opening brief because defendants supplemental brief asks us to consider this claim of error in its place.
"`A defendant has a constitutional right to have the jury determine every material issue presented by the evidence, . . ." (People v. Shoals, supra, 8 Cal.App.4th at pp. 489-490 quoting People v. Reynolds (1988) 205 Cal.App.3d 776, 779.) "[I]nstructional errors that have the effect of removing an element of a crime from the jurys consideration encompass a broad spectrum of circumstances and may be assessed in the context of the evidence presented and other circumstances of the trial to determine whether the error was prejudicial." (People v. Flood (1998) 18 Cal.4th 470, 489.) For purposes of California law, we apply the Watson standard. (Id. at p. 490.) In most cases claiming federal constitutional error, the Chapman standard will apply. (Id. at p. 502.)
People v. Watson (1956) 46 Cal.2d 818, 836-837.
Chapman v. California (1967) 386 U.S. 18.
The court has no sua sponte obligation to define a word that is commonly understood and is not being used in a technical sense peculiar to the law. (People v. Solis (2001) 90 Cal.App.4th 1002, 1014-1015.) However, when the jury requests clarification of a word, Penal Code section 1138 is triggered. Pursuant to Penal Code section 1138, if the jury "desire to be informed on any point of law arising in the case, . . . the information required must be given . . . ." This means the trial " `court has a primary duty to help the jury understand the legal principles it is asked to apply. [Citation.] This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under [Penal Code] section 1138 to determine what additional explanations are sufficient to satisfy the jurys request for information. [Citation.] Indeed, comments diverging from the standard are often risky. [Citation.] " (People v. Solis, supra, 90 Cal.App.4th at p. 1015 quoting People v. Beardslee (1991) 53 Cal.3d 68, 97.)
Defendant cites this courts decision in Shoals in support of his argument that the trial court was required to define the term in question. The case is distinguishable. The current form of CALJIC No. 12.08 was not used in Shoals. There the trial court had simply instructed the jury in the language of the statute itself and then re-read the same thing when the jury asked for clarification of what was meant by "maintained." Shoals pointed out that the cases construing the terms "maintaining" or "opening" have all concluded that section 11366 is aimed at places intended for a continuing course of use or distribution but that the statute makes no reference to continuing or repetitive conduct. Shoals held therefore that the trial court should have defined "maintaining" in order to insure that the jury understood that to be guilty, defendants purpose must have been to maintain the place for the illegal activity on a continuing or repetitive basis. (Shoals, supra, 8 Cal.App.4th at p. 491.)
Here the instruction that the trial court gave incorporated an explanation of the concept of continuing use that was missing in Shoals. The jury was instructed that they must determine that defendant had the specific intent to sell, give away, or use a controlled substance "on a repetitive or continuing basis." The trial judge pointed out that there were two parts to the instruction that had to be read together: first that defendant opened or maintained a place and second that he did so with the specific intent to sell, give away, or use a controlled substance on a repetitive or continuing basis. After the trial judge gave this explanation, she asked the jury if they wanted her to read it again and there was no transcribed response. Nor did the jury ask for an additional explanation or express any further confusion on the point. "A jury is presumed to follow its instructions. [Citation.] Similarly, a jury is presumed to understand a judges answer to its question. [Citation.] . . . To presume otherwise would require reversal every time a jury inquires about a matter of constitutional significance, regardless of the judges answer." (Weeks v. Angelone (2000) 528 U.S. 225, 234.)
Furthermore, defendant does not explain what if any misunderstanding could have arisen from confusion over the meaning of the word "maintain." To "maintain" can mean, "to keep in a state of repair," "to sustain against opposition or danger," "to persevere in: carry on: keep up: continue," or "to provide for: bear the expense of: support." (Websters 3d New Internat. Dict. (1993) p. 1362.) The definition that would be most applicable here is the third one: "to persevere in, carry on, or continue." Undoubtedly some of the jurys confusion arose from evidence that defendant was in the process of having his house painted. But even if the jury incorrectly decided that "maintained" meant "to keep in a state of repair," it remains that they were specifically informed that they were to determine whether defendants purpose in so doing was to permit the continuous or repetitive use of the house for the illegal purpose. The material issue was the specifics of defendants purpose and the trial courts instruction adequately informed the jury of that element.
Defendant also points out that one of the elements of a section 11366 violation is that the defendant must have opened or maintained the place for others, as opposed to the defendant alone. Defendant contends that failure to provide further explanation of the word "maintenance" meant that the jury was not apprised of this element of the crime.
Defendant does not explain how a definition of the word "maintenance" would have given the jury any guidance with respect to the requirement that the place be made available to others. Defendant points only to People v. Vera, supra, 69 Cal.App.4th 1100, in which this court determined that violation of section 11366 was a crime of moral turpitude. We based that decision on the fact that the terms "open" and "maintain" combined with the word "place" indicated that the statute involved provision of the place to others. (People v. Vera, supra, 69 Cal.App.4th at p. 1103.) The definition of "maintain" by itself does not compel that conclusion.
To the extent that the jury was not apprised of this element of the crime, the error was harmless under even the more stringent Chapman standard. The jury found defendant not guilty of selling methamphetamine. Since the jury was aware of Snyders guilty plea we may assume the jury believed that Snyder, not defendant was the drug seller. And although defendant tested positive for methamphetamine at the time of his arrest and admitted to drug use in the past, the evidence concerning the most recent drug activities was that defendants two girlfriends who either lived or stayed at the house were drug users and that defendant had a policy concerning the proper disposal of leftover drugs that other people brought to the house. In light of this evidence the jury could not have convicted defendant of violating section 11366 on the basis of his personal use or sale of drugs alone. Thus the error, if there was one, was harmless beyond a reasonable doubt. (See Chapman v. California, supra, 386 U.S. at p. 24.)
F. DISPOSITION
The judgment is affirmed.
WE CONCUR: Rushing, P.J., and Bamattre-Manoukian, J.