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F 12.08a
Opening Or Maintaining
Unlawful Place
(HS 11366)
Every person who opens or maintains any place for the purpose of unlawfully selling, giving away, or using any controlled substance is guilty of violating HS 11366. __________ is a controlled substance within the meaning of HS 11366.
In order to prove the offense, the prosecution must establish the following elements:
1. The defendant made the premises available for the purpose of continuously selling, giving away or using a controlled substance; and
2. The defendant specifically intended that the premises were to be used continuously for the purpose of selling, giving away or using a controlled substance.
“Continuous course of use” is defined as repetitious or successive usage.
Points and Authorities
Under HS 11366, a single or isolated use of premises is not sufficient to sustain a conviction. (People v. Horn (60) 187 CA2d 68, 72 [9 CR 578].) Rather, “the proscribed ‘purpose’ [of the statute] is one that contemplates a continuity of such unlawful usage; ….” (Ibid.) The statute is “aimed at placed intended for a continuing course of use or distribution.” (People v. Shoals (92) 8 CA4th 475, 490 [10 CR2d 296].) A continuous usage is demonstrated by evidence “of repetitious or successive unlawful conduct.” (Horn 187 CA2d at 72; but see People v. Hawkins (2004) 124 CA4th 675, 684 [“opening” and “maintaining” need not be defined in light of revised version of CJ 12.08].)
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]