Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Merced County. Ct. No. MF46094, David D. Minier, Judge.
Retired judge of the Madera Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Michael Willemsen, 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 Leanne LeMon, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DAWSON, J.
Following a jury trial, John Domingos Vieira (appellant) was convicted in count 1 of possession of methamphetamine for sale (Health & Saf. Code, § 11378), in count 2 of transportation of methamphetamine (§ 11379), in count 4 of maintaining an unlawful place for selling, giving away, or using a controlled substance (§ 11366), and in count 5 of possession of drug paraphernalia (§ 11364). In a bifurcated proceeding, the trial court found true, as to both counts 1 and 2, the allegation that appellant had previously been convicted of possession of methamphetamine for sale, pursuant to section 11370.2, subdivision (c). The trial court sentenced appellant to prison for a total term of six years eight months, consisting of the middle term of three years on count 2, plus a three-year enhancement; a concurrent middle term of two years on count 1; a consecutive term of six months on count 4; and a concurrent term of eight months on count 5.
All further statutory references are to the Health and Safety Code unless otherwise stated.
Count 3, possession of marijuana for sale (§ 11359), was dismissed by the People prior to impaneling the jury.
On appeal, appellant claims (1) that substantial evidence does not support the jury’s verdict of his conviction in count 4 for maintaining an unlawful place for selling, giving away, or using a controlled substance, (2) that the prosecution failed to provide the corpus delicti in count 4 through evidence independent of appellant’s extrajudicial statements, and (3) that the trial court incorrectly instructed the jury on the count 4 allegation. Appellant also claims, and respondent concedes, that the trial court’s imposition of a concurrent term on count 1 violated Penal Code section 654.
We agree with appellant that the evidence was insufficient to support appellant’s conviction for maintaining a place for the sale or use of a controlled substance, and we reverse appellant’s count 4 conviction. For this reason we need not reach appellant’s claims that the prosecution failed to establish the corpus delicti or that the trial court improperly instructed on that offense. We also agree with both parties that the trial court’s imposition of a concurrent term on count 1 violated Penal Code section 654 and we stay that term. In all other respects, the judgment is affirmed.
FACTS
On April 26, 2007, sheriff’s detectives Vince Gallagher and Micah Brawley were on patrol when they witnessed appellant drive his vehicle two blocks and into the driveway of his residence. The detectives contacted appellant and noticed that he was “very nervous,” his speech was rapid, and his pupils were constricted. Appellant admitted that he had used methamphetamine earlier in the day. He had 0.99 grams of methamphetamine and a glass pipe used to ingest methamphetamine on his person, as well as approximately $580 in cash. Appellant told the detectives that $367.50 of the money was from a work check he just cashed. Gallagher confirmed that appellant had recently received a check for that amount from one of his employers.
The detectives searched appellant’s vehicle and located numerous very small Ziploc baggies, a digital scale, and a bag containing a white crystal substance, later found to be MSM (dimethyl sulfone), a cutting agent. Appellant told the detectives that the white substance was “cut,” used to dilute methamphetamine.
The detectives then searched appellant’s residence and found a small amount, 0.21 grams, of methamphetamine on a table between the kitchen and living room. Appellant told the detectives he left the methamphetamine that morning for his girlfriend. A digital scale, three glass smoking pipes, and plastic baggies were found in appellant’s bedroom. Two additional smoking pipes were found, one in the kitchen and another one in the rear bedroom on a washing machine. Detective Brawley testified that all of the pipes found in the residence had a “burnt clouded off-white color to them,” suggesting that they had been used to ingest methamphetamine.
Detective Brawley opined, based on his training and experience, that appellant possessed the methamphetamine for sale. Detective Gallagher opined, based on his experience and training, that it was common for drug dealers to allow purchasers of drugs to use the drugs in the dealer’s residence.
Appellant was interviewed by the detectives after his arrest, and the taped interview was played for the jury. In the interview, appellant admitted that he used methamphetamine and that he sold drugs to support his habit. He also stated that his girlfriend, with whom he had lived in the house for two years, also used methamphetamine, but not every day. Appellant claimed that the money he had on his person was from cashing a work check.
DISCUSSION
1. Substantial evidence
Appellant contends there was insufficient evidence to establish that he maintained a place for the purpose of selling, giving away, or using a controlled substance in violation of section 11366. We agree.
In evaluating a claim of insufficient evidence, we uphold a conviction against a substantial evidence attack if a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. In making that determination, 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. 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.” Section 11366 does not require that the place be maintained for the purpose of selling drugs, but the statute may be violated by merely providing a place for drug abusers to gather and share the experience of using drugs. (People v. Vera (1999) 69 Cal.App.4th 1100, 1102.) Although there is no requirement that the place be maintained solely for unlawful activity, a defendant must have maintained the place with the specific intent that it be used for the unlawful purpose. (§ 11366.)
The statute requires 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. Horn (1960) 187 Cal.App.2d 68, 72.) “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.” (Ibid.) A violation of section 11366 may be shown by possession of a controlled substance and a series of unlawful acts, by possession and a single instance accompanied by circumstances that raise an inference of the proscribed purpose, or by possession and other circumstances pointing to culpability. (People v. Shoals (1992) 8 Cal.App.4th 475, 491, citing People v. Mehra (1925) 73 Cal.App. 162, 170-171; see also People v. Horn, supra, at p. 73.)
Furthermore, a person does not violate the statute by his or her own private possession or use of a controlled substance. (People v. Vera, supra, 69 Cal.App.4th at p. 1103.) “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.” (Ibid.)
In order to determine the type of conduct that would or would not qualify as a violation of section 11366, we look first to People v. Clay (1969) 273 Cal.App.2d 279, in which the court found substantial evidence to support a conviction under section 11366 (former § 11557). In Clay, a federal undercover agent went to the defendant’s house to purchase hashish. Someone in the house told the agent that he belonged to the Universal Life Church, which dealt with the use and sale of marijuana and other drugs, and insisted that the agent sign a card stating he was not a police officer. The agent signed the card and made arrangements to return to the defendant’s house to purchase five pounds of hashish for $5,500. When the agent returned, he observed the five pounds of hashish and alerted other officers. The officers forced entry into the house and discovered the hashish as well as other narcotics and drug paraphernalia. The officers found a number of cards similar to the one signed by the agent and various items indicating that the occupants used the drugs on a regular basis in the house. (People v. Clay, supra, at pp. 282-283.)
In rejecting the defendant’s challenge to the sufficiency of the evidence, the court noted, “[e]vidence he was the lessee of and in the house when a sale of hashish was negotiated, narcotics were scattered throughout the premises, marijuana smoke was smelled and used marijuana smoking apparatus was present supports the conviction of maintaining the house as a place for selling, giving away or using marijuana.” (People v. Clay, supra, 273 Cal.App.2d at p. 283.) The court further noted that, although a single isolated instance of forbidden conduct will not support a finding under the statute, “the circumstances surrounding the sale, the seller’s statement the Universal Life Church dealt with the use and sale of marijuana, the requirement a buyer sign a card stating he was not police-connected and the strong odor of burning marijuana both at 1 p.m. and again at 3 p.m. support the finding there was a continuity of purpose both for sale and for use of narcotics.” (Id. at pp. 283-284.)
In contrast to Clay, we next consider People v. Horn and People v. Shoals, in which the court found insufficient evidence to uphold a conviction for opening or maintaining a place for the sale of a controlled substance.
In Horn, officers, before knocking on the defendant’s door, heard one of the occupants say, “‘Give me the next fix.’” (People v. Horn, supra, 187 Cal.App.2d at p. 71.) An officer knocked and identified himself as “‘Tommy, from Oakland,’” but no one answered the door. The officers eventually forced open the door and observed five or six people inside the room. The occupants appeared to have recently used a controlled substance. Although the officers found no narcotics, they discovered various items associated with the use of narcotics, including measuring spoons, a moist cotton ball, a safety pin, a hypodermic syringe and needle, matchbook covers rolled up in the form of a bindle, and a spoon containing residue of a controlled substance. (Ibid.) When the officer entered the room, the defendant escaped through a window. When he was later found, the defendant told the officer that he had jumped out of the window to get away and that he lost five spoons of heroin in the process. (Ibid.)
In addressing the defendant’s argument that insufficient evidence supported his conviction, the court in Horn noted:
“The following facts, upon which respondent relies to establish the required continuity, fail to do so: (1) ‘[That] five of the occupants of the appellant’s apartment were found with old and new needle marks on their arms while under the influence of narcotics;…’ While this statement may be true, it demonstrates no more than that five people had recently used narcotics and had used them at some time in the past. (2) ‘[That] a couple of the occupants, including one woman who lived there permanently, were established to be narcotic addicts;…’ No evidence shows that any of the occupants were current addicts. (3) ‘[That] the stoveless kitchen was in a shabby condition, and the bedroom was dirty and neglected;…’ This is a neutral factor. (4) ‘[That] a large quantity of narcotics was on hand;…’ The record does not support the assertion; the only narcotic found consisted of a slight residue in one spoon. (5) ‘[That] numerous articles found in the apartment were closely associated with narcotics addiction;…’ It is true that the officers discovered several articles used in injecting narcotics, but there is no showing that they were used on more than one occasion. (6) ‘[The] use of a password to gain admission to the premises;…’ The record does not support this statement. The officers attempted to gain admission by using a ‘Tommy, from Oakland’ ruse, but they failed to gain admission and resorted to forcing the door. (7) ‘[An] occupant of the room was asking for “the next fix,” as the officers approached the door.…’ The record supports the statement but indicates no more than that on one occasion occupants used narcotics within the apartment.” (People v. Horn, supra, 187 Cal.App.2d at pp. 73-74.)
The court concluded that the evidence simply indicated a single instance of use, rather than the repetitious conduct required to support a conviction for maintaining a place for the purpose of using drugs. (Id. at p. 74.)
In People v. Shoals, officers arrived at the defendant’s motel room to execute an arrest warrant. They found 21 small baggies of cocaine, a pager, and $533 in cash. (People v. Shoals, supra, 8 Cal.App.4th at p. 481.) The court in Shoals held there was insufficient evidence that the defendant maintained the motel room for the purpose of selling cocaine. (Id. at p. 491.) The court noted that, although the defendant kept a large quantity of cocaine at the motel room, that fact alone does not lead to the presumption that the defendant maintained the room for the proscribed purpose. (Id. at p. 492.) “The comings and goings of appellant but not of customers support the inference that any selling to, giving away to, or using by others besides appellant … took place elsewhere.” (Ibid.)
From these cases we see that, when there is evidence of a single instance of sale or use, there must be substantial evidence of other circumstances indicating that the defendant made the place available for such unlawful conduct on a repetitive basis. And when there is only evidence of possession, there must be stronger evidence of other circumstances indicating that the defendant maintained the place for the unlawful purpose. (See People v. Shoals, supra, 8 Cal.App.4th at pp. 492-493.)
Here, we must determine whether there was evidence to show that appellant used his place to engage in the proscribed conduct and that appellant provided the location for such purpose to others. The prosecution’s theory that appellant used his residence to sell or use methamphetamine with others on a regular basis was provided by Detective Gallagher, who replied affirmatively when asked, based on his training and experience, whether narcotics dealers commonly allow individuals who purchase their drugs to use the drugs in their residence. In closing, the prosecutor argued that the elements of section 11366 were met because packaging materials, a scale, smoking pipes, and a small amount of methamphetamine, which appellant left for his girlfriend, were found in his residence, and, according to the officer, “it’s common for drug dealers to open their residence up to people who are meth users to their clientele.”
But after a careful review of the entire record, we cannot conclude that substantial evidence supports that appellant maintained his residence for the purpose of unlawfully selling or using any controlled substance within the meaning of the statute. During the search of the residence, the officers found items associated with personal use of methamphetamine (i.e., 0.21 grams of methamphetamine out in the open on a table and the smoking pipes), as well as other items to indicate that of drug sales (i.e., a gram scale, small Ziploc baggies). While sufficient to support a possession or possession for sale conviction, this evidence did not indicate that appellant used the residence to sell methamphetamine or to gather with others to use methamphetamine. Even if appellant’s act of leaving the methamphetamine in the residence for his girlfriend’s use can be seen as one instance of appellant using his residence to give away narcotics, it does not constitute the continuity contemplated by the statute. “[A] single or isolated instance of the forbidden conduct does not suffice.” (People v. Horn, supra, 187 Cal.App.2d at p. 72.) Furthermore, no “pay-owe” slips or other indicia of sales were in the house, no purchase was made from the home, no one was seen coming to or going from the home, and no one in the house was under the influence at the time of the search.
We conclude that the record fails to disclose substantial evidence that appellant maintained a place for selling or using methamphetamine. We must reverse appellant’s conviction on count 4 on the grounds of insufficient evidence, thereby precluding a second prosecution for the count 4 offense. (People v. Shoals, supra, 8 Cal.App.4th at p. 493.)
Appellant was convicted of a violation of section 11379, transportation of methamphetamine (count 2), and a violation of section 11378, possession of methamphetamine for sale (count 1). At sentencing, the trial court imposed the three-year middle term for the section 11379 conviction as the principal term. It then imposed the middle term of two years for the section 11378 conviction concurrent to the three-year principal term for the section 11379 conviction. Appellant now contends the trial court should have stayed the term for the section 11378 conviction. Respondent concedes the issue and we agree.
Penal Code section 654, subdivision (a) provides, in relevant part:
“An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.…”
The statute applies to the penal provisions of the Health and Safety Code. (In re Adams (1975) 14 Cal.3d 629, 633.) Under Penal Code section 654, courts are generally precluded from imposing multiple punishment where a defendant engages in a course of conduct that violates more than one statute. (In re Adams, supra, at p. 634.) The focus of this rule is whether the defendant acted pursuant to a single intent and objective. (Ibid.) The resolution of this question is one of fact and the sentencing court’s finding will be upheld on appeal if it is supported by substantial evidence.
Here, the possession of methamphetamine for sale and the transportation of the methamphetamine arose out of the same act of carrying the drug in an automobile with a single intent and objective. (See People v. Avalos (1996) 47 Cal.App.4th 1569, 1583; People v. Lopez (1992) 11 Cal.App.4th 844, 849-850.) Penal Code section 654 mandates that the conviction on count 1 be stayed.
DISPOSITION
We reverse appellant’s count 4 conviction under section 11366. The matter is remanded to the trial court to strike the sentence on count 4 and to stay execution of sentence pursuant to Penal Code section 654 on count 1. The court is directed to order that the clerk of the superior court prepare and forward to the Department of Corrections and Rehabilitation an amended abstract of judgment. As so modified and in all other respects, the judgment is affirmed.
WE CONCUR: WISEMAN, Acting P.J., HILL, J.