SERIES 2400 CONTROLLED SUBSTANCES
F 2440 Maintaining A Place For Controlled Substance Sale Or Use (HS 11366)
TABLE OF CONTENTS
F 2440.1 Titles And Identification Of Parties
F 2440.1 Inst 1 Maintaining A Place For Controlled Substance Sale Or Use —Title
F 2440.1 Inst 2 Identification Of Prosecution And Defendant
F 2440.2 Maintaining A Place For Controlled Substance Sale Or Use —Tailoring To Facts: Persons, Places, Things And Theories [Reserved]
F 2440.3 Maintaining A Place For Controlled Substance Sale Or Use —Language That Is Argumentative, Confusing, Etc.
F 2440.3 Inst 1 Delete Superfluous Verbiage
F 2440.4 Maintaining A Place For Controlled Substance Sale Or Use—Burden Of Proof Issues
F 2440.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 2440.5 Maintaining A Place For Controlled Substance Sale Or Use—Elements And Definitions
F 2440.5 Inst 1 Failure To Define “Sell”
F 2440.6 Maintaining A Place For Controlled Substance Sale Or Use—Defense Theories [Reserved]
F 2440.7 Maintaining A Place For Controlled Substance Sale Or Use—Preliminary Fact Issues [Reserved]
F 2440.8 Maintaining A Place For Controlled Substance Sale Or Use— Unanimity/ Duplicity/ Multiplicity [Reserved]
F 2440.9 Maintaining A Place For Controlled Substance Sale Or Use—Lesser Offense Issues [Reserved]
F 2440 Notes
F 2440 Note 1 Maintaining A Place For Controlled Substance Sale Or Use —CALCRIM Cross-References And Research Notes
F 2440 Note 2 Sale Of Drugs: Opening Or Maintaining An Unlawful Place To Sell Drugs (HS 11366)
F 2440 Note 3 Maintaining A Place For Controlled Substance Sale Or Use: Not Applicable To Repeated Sole Use Of Drugs At Home
Return to Series 2400 Table of Contents.
F 2440.1 Titles And Identification Of Parties
F 2440.1 Inst 1 Maintaining A Place For Controlled Substance Sale Or Use —Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 2440.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 2440.2 Maintaining A Place For Controlled Substance Sale Or Use —Tailoring To Facts: Persons, Places, Things And Theories [Reserved]
F 2440.3 Maintaining A Place For Controlled Substance Sale Or Use —Language That Is Argumentative, Confusing, Etc.
F 2440.3 Inst 1 Delete Superfluous Verbiage
*Modify CC 2440, Element 2, as follows [deleted language is stricken]:
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.
Points and Authorities
See FORECITE F 416.3 Inst 4.
F 2440.4 Maintaining A Place For Controlled Substance Sale Or Use—Burden Of Proof Issues
F 2440.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 2440.5 Maintaining A Place For Controlled Substance Sale Or Use—Elements And Definitions
F 2440.5 Inst 1 Failure To Define “Sell”
See FORECITE F 2430.5 Inst 1.
F 2440.6 Maintaining A Place For Controlled Substance Sale Or Use—Defense Theories [Reserved]
F 2440.7 Maintaining A Place For Controlled Substance Sale Or Use—Preliminary Fact Issues [Reserved]
F 2440.8 Maintaining A Place For Controlled Substance Sale Or Use— Unanimity/ Duplicity/ Multiplicity[Reserved]
F 2440.9 Maintaining A Place For Controlled Substance Sale Or Use—Lesser Offense Issues [Reserved]
F 2440 NOTES
F 2440 Note 1 Maintaining A Place For Controlled Substance Sale Or Use —CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
CALCRIM 2441 [Use of False Compartment to Conceal Controlled Substance]
Research Notes:
See CLARAWEB Forum, Controlled Substances—Series 2300.
F 2440 Note 2 Sale Of Drugs: Opening Or Maintaining An Unlawful Place To Sell Drugs (HS 11366)
See FORECITE F 12.08a.
RESEARCH NOTES: See Annotation, Validity and construction of state statutes criminalizing the act of permitting real property to be used in connection with illegal drug activities, 24 ALR 5th 428 and later case service.
CALJIC NOTE: See FORECITE F 12.02 n3.
F 2440 Note 3 Maintaining A Place For Controlled Substance Sale Or Use: Not Applicable To Repeated Sole Use Of Drugs At Home
In People v. Vera (1999) 69 CA4th 1100 (Vera), the court held that section HS 11366 does not cover “mere repeated solo use” of a controlled substance “at home.” (Id. at p. 1103.) In arriving at its conclusion, the court examined the meaning of “open” and “maintain.” “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.; see also People v. Ferrando (2004) 115 CA4th 917; People v. Leiske [UNCITABLE; UNPUBLISHED] 2009 Cal. App. Unpub. LEXIS 5027 (Cal. 1st Dist. 6/22/2009).)
