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Name: People v. Franco
Case #: B211850
Court: CA Court of Appeal
District 2 DCA
Division: 5
Opinion Date: 12/22/2009

Health and Safety Code section 11366 proscribes maintaining a place for the continuous or repeated use of drugs by others, not simply for personal use. Police found about $11,000 worth of cocaine, $4,000 worth of methamphetamine, as well as drug paraphernalia in appellant’s apartment. Appellant admitted using drugs, but denied selling them. A jury convicted him of, inter alia, maintaining a place for the use of controlled substances. (Health & Saf. Code, § 11366.) Appellant challenged the conviction because the jury was instructed with an old version of CALCRIM No. 2440 which allowed him to be convicted for maintaining a place for his own personal drug use. Respondent countered that the statute allows that. The court reversed. Although if read in isolation, the term “using” could be construed to encompass personal use, considering the language of the statute as a whole, other words in the statute, such as “opening,” “selling,” and “giving away” make clear that participation of another person is required. The issue was not forfeited despite trial counsel’s approval of the instruction because it was an incorrect statement of the law. The error was prejudicial because the jury acquitted appellant of two counts of possession for sale, and also asked for clarification on this exact point.