2440. Maintaining a Place for Controlled Substance Sale or Use
The defendant is charged [in Count ______] with (opening/ [or] maintaining) a place for the (sale/ [or] use) of a (controlled substance/ [or] narcotic drug).
To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant (opened/ [or] maintained) a place;
2. The defendant (opened/ [or] maintained) the place with the intent to (sell[,]/ [or] give away[,]/ [or] use[,]/ [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.
The court has a sua sponte duty to give this instruction defining the elements of the crime.
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].
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[n] (Matthew Bender).
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].)
(New January 2006)