Marzet

I

Health and Safety Code section 11353.6 provides that a sentence enhancement may be imposed when a specified narcotics offense, or conspiracy to commit the offense, is found to have occurred in a “public area” within 1,000 feet of a public or private elementary, vocational or secondary school during hours the school is open for classes or school-related programs. In the published portion of this opinion, we hold that when the underlying offense is a conspiracy to commit a narcotics offense, the enhancement may be applied when overt acts taken in furtherance of the conspiracy occur in a public area. This is so even though the narcotics are being held inside a private residence and the actual narcotics sale or transaction is to occur within the private residence.

In addition, we determine the question whether the conspiracy, or an act in furtherance of the conspiracy, was committed in a public area is one of fact which must be submitted to the jury. However, in the present case, the trial court’s failure to instruct the jury it must find beyond a reasonable doubt the conspiracy occurred in a public area does not require reversal of the enhancement. A review of the…