Franco

INTRODUCTION

Defendant and appellant David Garcia Franco (defendant) was arrested after an inspection of his apartment revealed a large quantity of drugs and drug paraphernalia. Defendant admitted to using the drugs, but denied that he sold or intended to sell them. A jury convicted defendant of maintaining a place for selling, giving away or using a controlled substance (Health & Saf. Code, § 11366). The jury acquitted defendant on two counts of possession of a controlled substance for sale (§§ 11351, 11378), but convicted defendant of the lesser included offense of simple possession of a controlled substance (§§ 11350, subd. (a), 11377, subd. (a)).

In the published portion of this opinion, we hold that section 11366 is not violated by a defendant’s personal use of a controlled substance in his or her own home, even if the defendant used drugs continuously or repeatedly. As relevant here, section 11366 is violated only if the defendant maintains a place for the continuous or repeated use of drugs by others. Accordingly, the trial court erred by giving the jury an instruction that permitted it to convict defendant for maintaining a place for his own personal drug use.…