California Criminal Jury Instructions (CALCRIM) (2017)

2440. Maintaining a Place for Controlled Substance Sale or Use

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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
333
0125
Cal.App.4th 713, 718–719 [103 Cal.Rptr.3d 310].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Public
Peace and Welfare, § 118.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.01[1][n] (Matthew Bender).
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].)
CALCRIM No. 2440 CONTROLLED SUBSTANCES
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