CALCRIM No. 2440. Maintaining a Place for Controlled Substance Sale or Use (Health & Saf. Code, § 11366)

Judicial Council of California Criminal Jury Instructions (2023 edition)

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I. OTHER RELATED OFFENSES
2440.Maintaining a Place for Controlled Substance Sale or Use
(Health & Saf. Code, § 11366)
The defendant is charged [in Count ]with (opening/ [or]
maintaining) a place for the (sale/ [or] use) of a (controlled substance/
[or] narcotic drug) [in violation of Health and Safety Code section
11366].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (opened/ [or] maintained) a place;
AND
2. The defendant (opened/ [or] maintained) the place with the intent
to (sell[,]/ [or] give away[,]/ [or] allow others to use) a (controlled
substance/ [or] narcotic drug), specifically <insert
name of drug>, on a continuous or repeated basis at that place.
New January 2006; Revised August 2009, October 2010
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
AUTHORITY
• Elements. Health & Saf. Code, § 11366.
• Purpose Must Be Continuous or Repetitive Use of Place for Illegal Activity.
People v. Horn (1960) 187 Cal.App.2d 68, 72 [9 Cal.Rptr. 578]; People v.
Holland (1958) 158 Cal.App.2d 583, 588-589 [322 P.2d 983].
• Jury Must Be Instructed on Continuous or Repeated Use. People v. Shoals
(1992) 8 Cal.App.4th 475, 490 [10 Cal.Rptr.2d 296].
• “Opening” and “Maintaining” Need Not Be Defined. People v. Hawkins (2004)
124 Cal.App.4th 675, 684 [21 Cal.Rptr.3d 500].
• Violations Are Crimes of Moral Turpitude Involving Intent to Corrupt Others, So
Solo Use of Drugs Not Covered by Section 11366. People v. Vera (1999) 69
Cal.App.4th 1100, 1102-1103 [82 Cal.Rptr.2d 128].
• Evidence of Personal Drug Use Not Sufficient. People v. Franco (2009) 180
Cal.App.4th 713, 718-719 [103 Cal.Rptr.3d 310].
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RELATED ISSUES
Corpus Delicti Includes Intent
“[T]he perpetrator’s purpose of continuously or repeatedly using a place for selling,
giving away, or using a controlled substance is part of the corpus delicit of a
violation of Health and Safety Code section 11366.” (People v. Hawkins (2004) 124
Cal.App.4th 675, 681 [21 Cal.Rptr.3d 500].)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 157.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.01[1][n] (Matthew Bender).
CALCRIM No. 2440 CONTROLLED SUBSTANCES
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