Error and/or relief
The jury found the defendant guilty of two felonies (maintaining a place for the purpose of using, selling, or giving away a controlled substance and felon in position of ammunition) and several misdemeanors (possession of cocaine, cultivating more than six marijuana plants, and possession of marijuana).
We conclude that two felony convictions must be reversed, the fee and assessment imposed for the possession of more than 28.5 grams of marijuana conviction must be reversed, either the possession of marijuana misdemeanor or the cultivating more than six marijuana plants misdemeanor must be stayed pursuant to section 654, and the four clerical errors in the judgment must be corrected.
First Holding:
When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence which is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence.
Appellate courts presume in support of the judgment every fact that the trier of fact could reasonably deduce from the evidence. Appellate courts also properly consider erroneously admitted evidence, notwithstanding the erroneous admission. Appellate courts do not resolve credibility issues or evidentiary conflicts. A judgment will not be reversed for insufficiency of the evidence merely because the circumstances may also be reasonably reconciled with a conclusion contrary to the judgment.
Authority:
People v. Cardenas (2025) 18 Cal.5th 797, 821
People v. Brooks (2017) 3 Cal.5th 1, 57
People v. Oyler (2025) 17 Cal.5th 756, 820
People v. Jackson (2014) 58 Cal.4th 724, 749
Second Holding:
Every person who opens or maintains any place for the purpose of unlawfully selling, giving away, or using any controlled substance as identified in particular sections of the Health and Safety Code shall be punished by imprisonment in the county jail for a period of not more than one year or the state prison. Because of the disjunctive “or,” section 11366 does not require that the place be maintained for the purpose of selling; it can be violated without selling, merely by providing a place for drug abusers to gather and share their experience.
Section 11366 proscribes continuously selling, giving away, or using a controlled substance; a single or isolated instance of this forbidden conduct is insufficient. Further, section 11366 is violated by selling or giving away to others, or allowing others to use, a controlled substance in a place maintained or opened for that purpose; it is not violated by an individual’s repeated personal use of a controlled substance at his home.
Authority:
HSC 11366
People v. Franco (2009) 180 Cal.App.4th 713, 716, 718
People v. Vera (1999) 69 Cal.App.4th 1100, 1102-1103 and fn. 2
People v. Green (1988) 200 Cal.App.3d 538, 544
People v. Shoals (1992) 8 Cal.App.4th 475, 490, 492
Third Holding:
In determining whether a place is opened or maintained for the purpose of selling, giving away, or using a controlled substance, the trier of fact should consider the surrounding circumstances, including: the quantity of any controlled substance discovered; the character of the place opened or maintained; how the place is fitted up; whether other individuals visited the place in unusual numbers or at unusual times; whether other individuals who were under the influence of a controlled substance were found at the place; whether lookouts were posted near or at the place; whether a password or passcode was needed for entry into the place; any pertinent statements by the defendant or those found at the premises; and whether any drug paraphernalia or drug residue was found in the place.
However, the quantity of controlled substance discovered at a place is alone insufficient to show that the place was maintained or opened for the purpose of continuously selling, giving away, or using a controlled substance.
Authority:
People v. Franco (2009) 180 Cal.App.4th 713, 726
People v. Hawkins (2004) 124 Cal.App.4th 675, 683
People v. Shoals (1992) 8 Cal.App.4th 475, 491-492
People v. Cannon (1957) 148 Cal.App.2d 163, 168
Fourth Holding:
Health and Safety Code section 11366 prohibits opening or maintaining a place for the purpose of selling, using, or giving away a controlled substance; it does not prohibit opening or maintaining a place for the purpose of growing or cultivating a controlled substance/marijuana. (Cf. sec. 11366 with 11358 [prohibiting the cultivation of marijuana]; 11366.5 [prohibiting individuals from making available a premises for the manufacture of a controlled substance]; cf. also Dowl [describing separate criminal provisions that are exempt from prosecution pursuant to the Medical Marijuana Program of sec. 11362.7 et seq.]
Authority:
People v. Dowl (2013) 57 Cal.4th 1079, 1086
Fifth Holding:
Section 11366 requires that a controlled substance be sold, used, or given away at the place maintained for such a purpose. Section 11366 simply does not address controlled substances that are sold, used, or given away at a location other than the place, even if the controlled substance is produced at the place. Accordingly, Shoals and related considerations do not support the conclusion that the instant property was used for the purpose of continuously selling, using, or giving away marijuana to others.
Authority:
HSC 11366
People v. Shoals (1992) 8 Cal.App.4th 475, 491 [The prosecution must prove that appellant opened or maintained the hotel room for the purpose of selling the cocaine base.]
People v. Holland (1958) 158 Cal.App.2d 583, 588 [There is no evidence that this barbecue stand was opened for the prohibited purpose.]
Sixth Holding:
A conviction cannot be constitutionally sustained on the basis of a theory that was not actually presented to the jury. Here, the instructions informed the jury that the controlled substance at issue was cannabis; cocaine was not mentioned. Therefore, the defendant’s conviction cannot be sustained based on the cocaine discovered at the property. In sum, the evidence shows the property was used to grow, cultivate, and process marijuana, but that is all. Substantial evidence does not support the section 11366 conviction because there is insufficient evidence that the defendant maintained the property for the purpose of continuously selling, using, or giving away marijuana at the property.
Authority:
Jackson v. Virginia (1979) 443 U.S. 307, 314
Cole v. Arkansas (1948) 333 U.S. 196, 202
People v. Kunkin (1973) 9 Cal.3d 245, 251
People v. Zemek (2023) 93 Cal.App.5th 313, 340
People v. Garcia (2014) 224 Cal.App.4th 519, 525
Seventh Holding:
Substantial evidence does not support the defendant’s conviction for felon in possession of ammunition. His prior felony under section 11359 was reduced to a misdemeanor and sealed. As a result of the resentencing and sealing, the prior felony is no longer a felony and cannot be used to support the defendant’s conviction. Because he has no other prior felony convictions, conviction on that count is unsupported and must be reversed.
In 2016, voters approved Proposition 64, which, among other things, generally reduced marijuana-related crimes from felonies to misdemeanors, including the offense of possession under section 11359. Proposition 64 also added section 11361.8, which provides a mechanism to obtain relief for those currently serving a sentence, or for those who had completed a sentence, for a marijuana offense affected by Proposition 64. For those qualifying defendants who have completed a sentence, the court shall redesignate the conviction as a misdemeanor or infraction or dismiss and seal the conviction as legally invalid.
Further, the Legislature has provided that a conviction that has been ordered sealed pursuant to section 11361.8 is deemed never to have occurred, and the person may reply accordingly to any inquiry about the events. The parties agree that, because the defendant had his prior felony conviction reduced to a misdemeanor under Proposition 64 and sealed, he was no longer a felon in possession of ammunition, and the count must be reversed.
Authority:
HSC 11361.8
HSC 11361.9
People v. Smit (2018) 24 Cal.App.5th 596, 599, 600
People v. Jessup (2020) 50 Cal.App.5th 83, 88
People v. Saelee (2018) 28 Cal.App.5th 744, 751
People v. Taylor (2021) 60 Cal.App.5th 115, 120, fn. 3.
Eighth Holding:
Penal Code section 654 provides in part that an act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision.
Section 654 may apply to an indivisible course of criminal conduct involving violations of different statutes, where the defendant commits the violations with a single intent and objective. It has been held that section 654 applies to prevent a defendant from being punished for both possession of marijuana and cultivation of marijuana where the possession was merely incidental to the cultivation.
A court’s implicit or express finding that a defendant harbored different intents and objectives for purposes of section 654 is reviewed for substantial evidence. The parties agree, and we concur, that substantial evidence does not support the trial court’s implicit finding that the defendant harbored different intents and objectives with respect to counts 6 and 7, cultivation of marijuana and possession of marijuana. The court must stay the sentence on one of the two counts.
Authority:
PEN 654
People v. Brents (2012) 53 Cal.4th 599, 618
People v. Rodriguez (2009) 47 Cal.4th 501, 507
People v. Vasquez (2020) 44 Cal.App.5th 732, 736–737
People v. McDaniel (1957) 154 Cal.App.2d 475, 485–486
People v. Richardson (2025) 108 Cal.App.5th 1203, 1214
Ninth Holding:
Health and Safety Code section 11372.7–which imposes a drug program fee for violation of its chapter–expressly excludes section 11357(b), possession of more than an ounce of marijuna, from its application. Thus, the trial court erred in imposing the fee under that that section, and it must be stricken, along with other fees that came into play based on that improperly imposed assessment.
Authority:
HSC 11372.7(e)
Tenth Holding:
The minute order contains several errors that must be corrected: (1) with respect to count 2 at page 3, the minute order lists the basis for fines and penalties as section 11372.5 instead of 11372.7; (2) with respect to count 2 at page 4, the minute order identifies the amount of penalty assessments as $3,210 instead of $310; (3) with respect to count 1 at page 5, the minute order lists the basis for fines and penalties as section 11372.5 instead of 11372.7; (4) with respect to count 5 at pages 5 and 6, all fees and penalties are improper because they were not imposed as part of the oral pronouncement of sentence.
A trial court’s oral pronouncement of sentence constitutes the judgment in a criminal case, and to the extent there is a discrepancy between the oral pronouncement and a minute order or abstract of judgment, the oral pronouncement will control. Reviewing courts on appeal may correct any discrepancy that exists between a trial court’s oral pronouncement of sentence and a minute order or abstract of judgment.
Authority:
People v. Gobert (2023) 89 Cal.App.5th 676, 689
People v. Scott (2012) 203 Cal.App.4th 1303, 1324