People v. Miller

Full title: THE PEOPLE, Plaintiff and Respondent, v. DONALD ROY MILLER, Defendant and…

Court: Court of Appeals of California, Third District.

Date published: Oct 31, 2003

No. C039747 (Cal. Ct. App. Oct. 31, 2003)

Opinion

C039747.

10-31-2003

THE PEOPLE, Plaintiff and Respondent, v. DONALD ROY MILLER, Defendant and Appellant.

Kolkey

Convicted of furnishing methamphetamine, marijuana, and alcohol to four teenage girls, defendant Donald Roy Miller appeals. He claims various evidentiary, instructional, and sentencing errors. He also asserts that some of his convictions are unsupported by substantial evidence.

Although his contentions largely fail, three of the defendants claims of sentencing error have merit. As to those, we shall modify the sentence and remand. In all other respects, the judgment is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

At the time of these events, defendant was 38 or 39 years old. His victims were four girls, who were more than 20 years younger than he: Lucy was 13 or 14; Jennifer D.¹ was 14; Grace was 15; and Lila was 13 or 14.

1 Jennifers initial is used to distinguish her from an adult witness, Jennifer Roberts.

I. The Valentines Day Party in Foresthill

When Lucy met defendant, she was in the eighth grade, and defendant was living in a trailer on her parents property in Foresthill.

On or about February 14, 2000 (all future date references are to 2000), defendant had a Valentines Day party at the trailer, which lasted all night. Grace, Lucy, and Lila (and a few others) attended; defendant was the only adult present.

Defendant provided marijuana, alcohol, and methamphetamine. Grace later testified at trial that defendant gave alcohol to everyone at the party, that he furnished marijuana for the girls to smoke and had pipes for them to use, and that he gave them methamphetamine, which he and the girls smoked or snorted. As Grace described it, there was "an unlimited supply, all you want, basically." Defendant also gave Grace, Lucy, and Lila each a flower in celebration of the occasion.²

2 Grace testified at trial that this was not the first time that defendant gave her drugs. On her 15th birthday in January 2000, Grace drank beer and smoked marijuana which defendant gave her.

Lucy testified that defendant gave her marijuana at the party³ (which she smoked), that alcohol was available in a cooler in defendants trailer, and that she smoked methamphetamine at the urging of another party guest.

3 Lucy testified at trial that this was also not the first time that defendant had given her marijuana: A few weeks before the party, defendant gave a "little package of marijuana" to Lucy and a girlfriend while they waited at the school bus stop, and around the same time, he gave her some marijuana while she was in the park with Lila. He also gave her a marijuana pipe.

Defendant took photographs at the party, which were later shown to the jury. One photograph depicts Grace holding the roses that defendant had given the girls; another shows her drinking alcohol. Lila was also photographed drinking alcohol. A photograph shows a male guest holding a marijuana pipe at the party.

II. Parties at Defendants Gold Street Apartment

Defendant moved from the trailer on Lucys parents property to an apartment on Gold Street in Foresthill. Grace, Lucy, and Lila also visited him there and partied with him.

Lucy testified that defendant offered her beer and marijuana at the apartment, saying, "Here, take it," or "Take as much as you want."

Photographs taken in defendants apartment were shown to the jury. One depicts defendant, Lila, and a marijuana pipe. Another shows Lila next to a bottle of alcohol.

III. Parties in Defendants Room at Mrs. Archers House

In the beginning of September, defendant began renting a room in the home of Connie Archer, who lived across the street from Placer High School in Auburn. Archer and her husband lived in the house and rented the three upstairs bedrooms to defendant and two other tenants.

From the beginning of defendants tenancy, Archer noticed that he had "many" visitors to his room, who were "very young girls." The girls were there during school hours and late at night. While they were there, Archer heard sounds from defendants room that sounded like "partying": loud music, laughing, and talking. She smelled the odor of marijuana coming from defendants room and smelled it on the girls as they left the house. She noticed that the girls seemed "partied out" as they "c[a]me back down" from defendants room and that they slurred their words.

Grace introduced defendant to Jennifer D. At trial, Grace testified that the two girls often went to defendants room in the Archer house together. While there, they used alcohol, marijuana, and methamphetamine furnished by defendant. A white dish in defendants room often held the marijuana. And each time she partied with defendant, Grace snorted methamphetamine five or six times.

For her part, Jennifer D. testified that she first met defendant in his room at the Archer house. Defendant offered her methamphetamine, and she snorted it. She also testified that over the course of a couple months, she used methamphetamine with defendant "a lot[,] way too much." The first time Jennifer D. met defendant, he also gave her marijuana to smoke. And over the next two months, she smoked marijuana furnished by defendant more than 20 times. Jennifer D. testified that both Grace and Lila were then also using marijuana and methamphetamine furnished by defendant.

Defendant never limited the quantity of his drugs that the girls could consume, and he never accepted any money from the girls to pay for them.

Photographs taken in defendants room showed Grace with marijuana visible in a dish and lines of methamphetamine laid out on a table.

Around October 16, Archer left defendant a note stating that his tenancy was "not working out" and that they needed to discuss other arrangements. Two days later, on October 18, Archer gave defendant a written notice that she was terminating his tenancy for "1.) Failure to pay Rent on Time. 2.) D[e]struction of property (Bed Room). 3.) Cont[r]ibuting [sic] to min[o]rs (17 years of age and under)."

Defendant did not respond. Archer did not see him return to his room after she gave him the eviction notice, and he left his belongings there.

Around October 22, Archer went into defendants room and found a pipe for smoking marijuana, marijuana in a white porcelain dish, marijuana seeds, grow lamps, an empty pen, and a small scale. She also saw photographs depicting girls and drugs. Archer noticed a marijuana leaf had been painted on the inside of the bedroom door.

Archer called the police the same day and showed them what she had found. The police later returned with a search warrant and seized the items.

IV. Party at Jennifer D.s House

Around the time defendant was being evicted from his room at the Archer house, Grace and Jennifer Roberts (then 21 years old) were staying at Jennifer D.s house.

On or about October 21, there was a party at Jennifer D.s house while her parents were not at home.⁴ Jennifer D., Grace, Jennifer Roberts, Lila, and another girl were there. Defendant gave each of the girls and Roberts a faux rose.

4 Shortly before the party, defendant took Grace, Lila, and Jennifer Roberts to his room at the Archers house. Defendant had methamphetamine, and Grace offered some to Jennifer Roberts.
The day before the party, Grace was caught at school with marijuana that defendant had given her.

Everyone at the party consumed alcohol, marijuana, and methamphetamine, all of which was furnished by defendant and offered by him to the girls and Roberts. Grace testified that defendant took the methamphetamine and marijuana out of his pocket and asked, "You guys want to do some shit?" He filled the bowl of a pipe with marijuana and handed it to one of the girls, who passed it around. At one point, defendant left the party and returned with more beer, asking if anyone wanted any more.

A second search warrant was served on defendant on November 15. Marijuana and a pipe were found in his pocket.

V. The Charges

Defendant was charged with maintaining his room at the Archer home as a place for selling or using methamphetamine in violation of Health and Safety Code section 11366 (count 1);⁵ possessing methamphetamine (id., § 11377, subd. (a) — count 2); failing to register as a drug offender (id., § 11590 — count 3); and two counts of misdemeanor marijuana possession (id., § 11357, subd. (b) — counts 4 and 5).

5 We shall use numerical figures to refer to each count, although the complaint spells out each number.

Defendant was also charged with one count each of furnishing Jennifer D. with methamphetamine (Health & Saf. Code, § 11380, subd. (a) — count 6) and marijuana (Health & Saf. Code, § 11361, subd. (b) — count 7); with two counts of furnishing Grace with alcohol (Bus. & Prof. Code, § 25658, subd. (a) — counts 8 and 11); with one count each of furnishing Grace with methamphetamine (count 9) and marijuana (count 10); with furnishing Lucy with methamphetamine (count 12), marijuana (count 13), and alcohol (count 14); with encouraging Lila to use methamphetamine (Health & Saf. Code, § 11380, subd. (a) — count 15); and with one count each of furnishing Lila with marijuana (count 16) and alcohol (count 17).

As to the counts alleging that he furnished methamphetamine to Jennifer D., Grace, and Lucy, and the charge that he encouraged Lila to use methamphetamine, the felony complaint also alleged that each of the girls were at least four years younger than defendant, so as to make him eligible for the enhancements specified in Health and Safety Code section 11380.1, subdivision (a)(3).

VI. Theories at Trial Lucy, Grace, and Jennifer D. testified at trial.

The prosecutions theory was that defendant was motivated to provide the girls with "an all-you-can-eat smorgasbord of drugs and alcohol" by reason of his romantic interest in at least two of them: Lucy and Grace.

Police seized journals from defendant, which contained writings in the form of unsent letters to Lucy, in which he referred to Lucy in romantic terms.⁶ These letters were shown to the jury.

6 For example, defendant wrote: "I Love You With All of My Heart[, Lucy.] Your [sic] the most beautiful woman Ive ever met in my life! I dont care what other people believe or think! I dont believe age matters! . . . You call me your friend but would you really do everything you possibly could to make me happier than Ive ever been in my life! For once in my life before I die I would honestly love to know what it would be like to wake up in the arms of a woman your [sic] truely [sic] in love with! . . . "Your [sic] the most beautiful woman Ive ever met in my life! I love you always and forever! Lovely and Sexy[,Lucy]! Your [sic] really and truely [sic] breaking my heart! . . . You make me so very happy when your [sic] around me! I, `Donny, Always want you by my side and in my life always and forever! I cant help the way I feel! Sexy Lady! All I can do is work hard to prove I love you and hope you love me as much as I love you! . . ."

Another of the Archers tenants testified that defendant described Grace as "his main squeeze" and that defendant said that "he liked younger women because they were more interested in having children than women his own age." Mrs. Archer testified that defendant referred to one of the girls as his "girlfriend."

A law enforcement expert on controlled substances and their use and abuse by minors testified that a man romantically or sexually interested in young girls might give them drugs to lower their inhibitions and impair their judgment, thereby increasing the likelihood of their assent to such a relationship.

Defendant did not testify. The defenses chief theory was that although defendant may have attended parties and gatherings with the minors where drugs were consumed, he did not actively provide them: The drugs and alcohol were simply "there" in his room or apartment, and the girls used them.⁷

7 Defendants counsel argued: "Mr. Miller is charged with providing this stuff, but theres no evidence that Mr. Miller actually provided it. It was there. Beer in the cooler, marijuana on the table. Okay. Girls go use it. No one objects. Doesnt mean Mr. Miller provided it. [¶] . . . [¶] But even at the Valentines Day party, we have no evidence that Mr. Miller provided anything. There was meth there. There was marijuana there. There was some beer there. It was his apartment, sure, his room. The stuff was there. But we dont know who brought it."
"Again, I submit that just because there is marijuana, methamphetamine and alcohol in a room does not necessarily mean that person who owns that room or who is renting that room is necessarily furnishing or providing that stuff or that substance or whatever it is."

The jury found defendant guilty on all counts and found all enhancements true.

We will recite additional facts, where relevant, in the Discussion.

DISCUSSION

I. The Trial Court Did Not Err In Defining "Furnish" for the Jury

Defendant was charged with "furnishing" methamphetamine, marijuana, and alcohol to all four young victims. He argues that the definition of "furnishing" given to the jury "was erroneous, for it included passive conduct, such as making the drugs merely `available to a minor," but that "[l]eaving drugs in a state of availability, accessible to a minor, is not the sort of active transfer to a minor that the transitive verb `to furnish defines."

A. The Instructions on "Furnishing"

Three different statutes dealt with furnishing prohibited substances to minors in this case, depending upon the particular substance involved.

Health and Safety Code section 11380, subdivision (a), punishes any "person 18 years of age or over . . . who unlawfully furnishes, offers to furnish, or attempts to furnish those controlled substances [including methamphetamine] to a minor . . . ."

The jury was instructed pursuant to CALJIC No. 12.15 that to find defendant guilty of violating this statute, it must find that he "furnished methamphetamine" to Jennifer D., Grace, Lucy, and Lila, as alleged. (Italics added.)

Health and Safety Code section 11361 specifically prohibits an adult from furnishing marijuana to a minor. It punishes any "person 18 years of age or over who furnishes, administers, or gives, or offers to furnish, administer, or give, any marijuana to a minor 14 years of age or older . . . ." (Health & Saf. Code, § 11361, subd. (b).)

For purposes of this statute, the jury was instructed pursuant to CALJIC No. 12.29 that to find defendant guilty, it must find that he "furnished, administered, or gave marijuana" to Jennifer D., Grace, Lucy, and Lila, as alleged. (Italics added.)

Business and Professions Code section 25658, subdivision (a), prohibits "furnishing" alcohol to a person under the age of 21. It states in relevant part that "every person who . . . furnishes, gives, or causes to be . . . furnished, or given away, any alcoholic beverage to any person under the age of 21 years is guilty of a misdemeanor." (Bus. & Prof. Code, § 25658, subd. (a).)

For purposes of the statute, the jury was instructed pursuant to CALJIC NO. 16.010 that to find defendant guilty, it must find he "furnished, [or] gave" an alcoholic beverage to Jennifer D., Grace, Lucy, and Lila, as alleged. (Italics added.)

During deliberations, the jury sent a written request, asking the judge to "[d]efine the word furnishing." In response, the court provided the following supplemental instruction: "`Furnish means to supply or provide in any way, including giving or making item available for use."

B. The Court Did Not Err in Defining "Furnish"

As noted, defendant contends on appeal that the "court improperly defined the word `furnishing in response to a question from the jury" because "it included passive conduct, such as making the drugs merely `available to a minor."

When a jury requests further clarification of a word in a jury instruction, Penal Code section 1138 is triggered. That section provides that if, after the jury has retired for deliberations, it "desire[s] to be informed on any point of law arising in the case," the information must be given, in the presence of defense counsel. (People v. Solis (2001) 90 Cal.App.4th 1002, 1015.) The trial court "has a primary duty to help the jury understand the legal principles it is asked to apply. [Citation.] This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under [Penal Code] section 1138 to determine what additional explanations are sufficient to satisfy the jurys request for information. [Citation.] Indeed, comments diverging from the standard are often risky. [Citation.]" (People v. Beardslee (1991) 53 Cal.3d 68, 97; People v. Solis, supra, 90 Cal.App.4th at p. 1015.) "However, `[a] definition of a commonly used term may nevertheless be required if the jury exhibits confusion over the terms meaning. [Citation.]" (Ibid., citing 5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial, § 633, p. 906.)

Whether the court should have deemed the form instructions sufficient and declined to offer any additional guidance is reviewed under an abuse of discretion standard. (People v. Waidla (2000) 22 Cal.4th 690, 745-746.)

In this case, we cannot agree that the court abused its discretion in offering a definition of "furnish."⁸ And we do not agree with defendant that the trial court erred in defining "furnish" to mean "to supply or provide in any way, including giving or making item available for use."

8 The record is silent on whether defendant objected to the trial courts decision to offer a supplemental instruction on the definition of the word "furnish." The Attorney General argues that a defendant may waive a violation of Penal Code section 1138, citing People v. Frye (1998) 18 Cal.4th 894, 1007, and other cases.
ButFrye addressed counsels waiver of an objection to the trial courts failure to correctly respond to the jurys request to hear certain testimony, not a request for an instruction. (People v. Frye, supra, 18 Cal.4th at pp. 1006-1007.) Furthermore, the Supreme Court did not decide the waiver issue in Frye, but instead found the error harmless. In any event, even if the rights under Penal Code section 1138 can be waived, the failure to object to an instruction at trial does not normally preclude review if the instruction may have affected the defendants substantive rights. (Pen. Code, § 1259 ["The appellate court may . . . review any instruction given, . . . even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby"]; see People v. Flood (1998) 18 Cal.4th 470, 482, fn. 7.) Since Penal Code section 1259 directly addresses the issue of waiver of instructional error, it governs the waiver issue over any general principle of waiver applied to Penal Code section 1138. (People v. Hillhouse (2002) 27 Cal.4th 469, 505-506.)

Health and Safety Code sections 11380 (furnishing controlled substances to a minor) and 11361 (furnishing marijuana to a minor 14 years of age or older) are part of the California Uniform Controlled Substances Act (Health & Saf. Code, § 11000 et seq.). That Act adopts the definition of "furnish" contained in former Business and Professions Code section 4048.5. Specifically, Health and Safety Code section 11016 (which is part of the Act) provides: "`Furnish has the same meaning as provided in [former] Section 4048.5 of the Business and Professions Code." In turn, former section 4048.5 of the Business and Professions Code provided: "`Furnish means to supply by any means, by sale or otherwise."⁹

9 Business and Professions Code section 4048.5 was repealed in 1996, but Health and Safety Code section 11016 — which refers to that provision — has not been amended to reflect that change.

In this case, the first part of the trial courts supplemental instruction clearly followed this definition by stating that "`furnish" meant "to supply or provide in any way," but it then added "including giving or making item available for use."

Defendants specific complaint concerns that part of the supplemental instruction that defined "furnish" as including "making item available for use." In defendants view, a social host who merely makes "drugs . . . available for use at [the] gatherings" by minors, who, in turn, partake of the available drugs "of their own volition," cannot be criminally liable for furnishing drugs to minors.

We disagree. "`[S]tatutes must be construed so as to give a reasonable and common-sense construction consistent with the apparent purpose and intention of the lawmakers — a construction that is practical rather than technical, and will lead to wise policy rather than mischief or absurdity. [Citation.]" (People v. Turner (1993) 15 Cal.App.4th 1690, 1696, disapproved on another ground in People v. Flores (2003) 30 Cal.4th 1059, 1068.) Any common sense construction of "furnish" pursuant to Health and Safety Code section 11016s definition of "supply by any means, by sale or otherwise" (former Bus. & Prof. Code, § 4048.5) must cover an adult who invites minors to a private place where he makes drugs and alcohol available to them. By specifically inviting minors to the private place where those prohibited substances are made available, the adult has furnished those substances by any reasonable definition, that is, he has supplied them.

Indeed, in the related context of an adult furnishing alcohol to minors (Bus. & Prof. Code, § 25658, subd. (a)),¹⁰ this court has held that a social host who controls the alcohol in his home and who takes "some affirmative step to supply it to the drinker," including an authorization of its use by the minors, has "furnished" it within the meaning of the statute. (Sagadin v. Ripper (1985) 175 Cal.App.3d 1141, 1158 (Sagadin).) That is precisely the case here.

10 Business and Professions Code section 25658, subdivision (a), provides in pertinent part that "every person who sells, furnishes, gives, or causes to be sold, furnished, or given away, any alcoholic beverage to any person under the age of 21 years is guilty of a misdemeanor."

In Sagadin, minors injured in a car accident after leaving a Halloween party sought to hold the teenage hosts parents civilly liable for violating Business and Professions Code, section 25658, subdivision (a). (Sagadin, supra, 175 Cal.App.3d at pp. 1151, 1153.) The hosts father knew about the party in advance and told his son that if the guests (whom he knew to be underage) drank any of the fathers beer, it would have to be replaced. (Id. at p. 1149.) The plaintiffs and other guests helped themselves to the fathers beer after the hosts parents had left the house. (Ibid.)

We explained that "furnishing" alcohol to minors requires an affirmative act: "`The word "furnish" implies some type of affirmative action on the part of the furnisher . . . . [Citation.] Among other things, it means to supply, to give, or to provide. [Citation.] Consequently, allegations which do not allege that the defendant `actually furnished liquor fail to state a cause of action for negligence under a furnishing statute. [Citation.] Thus allegations that the defendant apartment owners `permitted the driver to drink or that the defendant apartment manager in some unspecified manner `aided, abetted, participated and encouraged the driver to drink to excess are insufficient. [Citation.] . . . Weiner [v. Gamma Phi Chap. of Alpha Tau Omega Frat. (1971) 258 Ore. 632 [485 P.2d 18, 22]] . . . held that no liability arose for merely supplying the host with alcohol or providing a room where alcoholic beverages are served, even when the supplier and the proprietor had knowledge that minors would be served. Similarly, the failure of university officials to stop a campus drinking party does not constitute the affirmative act of furnishing alcohol. [Citation.] Nor does the mere act of contributing to a common fund for the purchase of liquor constitute furnishing where the defendant never exercised any control over the alcohol consumed by his companions. [Citation.] Finally, the failure to protest or to attempt to stop another from drinking in ones presence is not such an affirmative act of furnishing. [Citation.] In short, nonfeasance does not violate the statute." (Sagadin, supra, 175 Cal.App.3d at p. 1157.)

That said, we found that the defendant father in Sagadin had "furnished" beer to the plaintiffs within the meaning of the statute. Although providing a location with the knowledge that alcohol would be served to the minors and failing to prohibit the use of the beer was arguably insufficient to constitute furnishing, we explained: "The jury had before it Mr. Boal[s] testimony that he told his son that if parental beer was used, it would have to be replaced. Although the inference is not compelled, the jury could reasonably have inferred this was authorization to use the beer. A permissible inference from this undisputed testimony was that Mr. Boal tacitly authorized his son to provide his beer to the plaintiffs. The jury drew that inference and we, like the Boals, are bound by it. [Citation.] Such an authorization constitutes the requisite affirmative act as a matter of law. In order to furnish an alcoholic beverage the offender need not pour the drink; it is sufficient if, having control of the alcohol, the defendant takes some affirmative step to supply it to the drinker. By authorizing his son to supply beer to the underage partygoers, Mr. Boals act was one of misfeasance rather than nonfeasance; his affirmative conduct created the risk. Robert Boal may then be said to have furnished beer." (Sagadin, supra, 175 Cal.App.3d at p. 1158.)

Even if we were to agree that the defendant in this case did nothing more than make drugs available for the girls to use, his actions in the context of this case constituted the kind of affirmative act — an authorization of drug use — that we found to constitute "furnishing" in Sagadin when applied to alcohol. It was not just that defendants drugs were "present" at parties; defendant hosted the parties (with the exception of the one at Jennifer D.s house); he supplied the drugs and alcohol (including at Jennifer D.s house); and he put the drugs out so as to invite the girls to use them. In the context of parties hosted by defendant for the minors, defendant furnished the drugs or alcohol when he made them "available for use," thereby authorizing the minors to consume those substances. Such a definition is consistent with the statutory definition of furnish, "to supply by any means" (former Bus. & Prof. Code, § 4048.5, italics added; Health & Saf. Code, § 11016).

To paraphrase Sagadin, in order to furnish illegal drugs, the offender need not fill the pipe; it is sufficient if, having control of the drugs, the defendant took some affirmative step to supply it to the minors. (Cf. Sagadin, supra, 175 Cal.App.3d at p. 1158.)

This is not a case of defendant supplying the prohibited substances to merely a third party who supplied them to the minors or a failure to stop the minors from using the substances. Defendant directly made the prohibited substances available for the minors at parties to which he invited them, or he alternatively brought the prohibited substances to a party (at Jennifer D.s house) held for the minors elsewhere. He therefore supplied them in either case. The trial court properly defined the word "furnish" in the context of this case.

In his reply, defendant suggests that if "furnish" only requires making the prohibited substance available for use, "then every parent who keeps beer in the home refrigerator would be guilty of violating Business and Professions Code section 25658, even though minor children in the household do not drink it." But defendants example does not make the beer "available for use" in the sense of authorizing the children to use it; it only makes the beer accessible for use.

Moreover, in this case, the girls testified that defendant did far more than make the drugs and alcohol "available" for use: He expressly offered drugs to the girls, saying, "Here take it," and gave them drugs, going so far as to prepare "lines" of methamphetamine for them to snort and to fill marijuana pipes for them to smoke. There was no error in the trial courts instruction in the factual context of this case.

II.

The Court Did Not Err in Instructing the Jury on Possession of a Controlled Substance Pursuant to CALJIC No. 12.00

The jury was instructed pursuant to CALJIC No. 12.00 that one of the elements of illegal possession of marijuana is that "[t]he substance was in an amount sufficient to be used as a controlled substance."

On appeal, defendant complains that this portion of the instruction "is erroneous, because it omits the requirement that the substance be in a form sufficient to be used as a controlled substance. Because two of the three simple possession counts involved residue not shown to be usable in form, the misinstruction was prejudicial."

Defendant explains that count 2, which charged defendant with possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), was based on methamphetamine residue found in a hollow pen, and that counts 4 and 5, which charged defendant with possession of marijuana (id., § 11357, subd. (b)), were based on a baggie holding 0.84 grams of marijuana and a pipe containing 0.11 grams of material containing marijuana. In each case, he claims the jury was not instructed that the substance had to be in a form sufficient to be used as a controlled substance. We disagree with various of defendants factual premises and with his conclusion that the omission was prejudicial.

A. People v. Leal

In arguing that the trial court was required to modify CALJIC No. 12.00 so as to instruct the jury that the substance must be in both a quantity and "a form sufficient to be used as a controlled substance," defendant relies on People v. Leal (1966) 64 Cal.2d 504 (Leal).

In Leal, the defendant was convicted of possessing heroin based on the residue found on his cooking spoon, which weighed one-half grain and "contain[ed] heroin." (Leal, supra, 64 Cal.2d at p. 505.) Reversing the judgment, the Leal court disapproved a line of cases holding that possession of even minute traces of drugs was punishable, noting that in such cases the defendant may be unaware of the presence of the drug, thus defeating one of the essential elements of the crime of possession. (Id. at p. 508.) The court observed that cases contrary to the disapproved line of cases "have evinced a fundamental doubt that the statute, properly construed, applies to the possession of narcotics so limited in quantity or so altered in form as to be useless for narcotic purposes." (Id. at p. 506.)

Seizing upon the language in Leal that a person should not be punished for possessing narcotics "so limited in quantity or so altered in form as to be useless for narcotic purposes" (Leal, supra, 64 Cal.2d at p. 506), defendant argues that the jury should have been directed to find that the controlled substance was both usable in form and quantity when possessed.

But the California Supreme Court has since characterized Leal as merely holding that in proscribing the possession of a substance with a narcotic potential, the Legislature "`did not refer to useless traces or residue of such substance." (People v. Rubacalba (1993) 6 Cal.4th 62, 65, quoting Leal, supra, 64 Cal.2d at p. 512.) Surveying the decisions construing Leal, it ruled: "These cases make clear, and we agree, that the Leal usable-quantity rule prohibits conviction only when the substance possessed simply cannot be used, such as when it is a blackened residue or a useless trace. It does not extend to a substance containing contraband, even if not pure, if the substance is in a form and quantity that can be used. No particular purity or narcotic effect need be proven." (People v. Rubacalba, supra, 6 Cal.4th at p. 66; see, e.g., People v. Karmelich (1979) 92 Cal.App.3d 452, 456 ; People v. Schenk (1972) 24 Cal.App.3d 233, 237-238; People v. Simmons (1971) 19 Cal.App.3d 960, 965.)

As shown in the next subsection, this case does not involve a substance transformed in form that can no longer be used, but raises only an issue over the quantity of the substance found. In contrast, in the one published decision that has attempted to apply Leal to the question of the form of the drug, the defendant had kept some marijuana in a solution of alcohol, which rendered it poisonous and devoid of narcotic worth, and the Court of Appeal therefore reversed his marijuana possession conviction. (People v. Vargas (1973) 36 Cal.App.3d 499, 506.)

B. The Form of the Drug Was Not at Issue Here

We reject defendants challenge here because only the quantity, not the form, of the substance containing the contraband was at issue in the challenged counts. Specifically, defendants convictions for possession of marijuana and methamphetamine did not turn upon the presence of an unusable form of the prohibited substance.

1. The Marijuana Possession Convictions (Counts 4 and 5).

A careful examination of the evidence underlying the two marijuana possession counts, counts 4 and 5, demonstrates that neither count rests on the form of the drug, as opposed to the quantity.

Count 4 alleges that defendant illegally possessed marijuana "[o]n or about October 24, 2000," the approximate date on which defendant vacated his room in the Archer house. From defendants room at the Archer house, police seized a marijuana pipe. At trial, the criminalist called by the prosecution testified that he removed the contents from the pipe, and that the material contained marijuana and weighed 0.11 grams, which he opined was a "usable amount" of marijuana.

Defendant argues that "the substance was not described as marijuana, but as `material containing marijuana," suggesting that it was "burnt marijuana ash," and claims that whether "this residue was possessed in a usable form was a key issue."

However, the police also seized from defendants room at the Archer house a white porcelain dish containing an additional 0.84 grams of "vegetative" marijuana, which the criminologist also testified was a usable amount. Thus, defendants challenge to the instruction with respect to count 4 fails because (1) the conviction on count 4 did not turn solely on the marijuana removed from the pipe, (2) the marijuana found in the porcelain dish and in the pipe was not a useless residue or trace, as found in Leal, supra, 64 Cal.2d at page 512, because the criminalist found it usable in quantity, and (3) there was no evidence from which the jury could have determined that the marijuana in the pipe was not in a usable form, even if instructed as defendant desires. Accordingly, even if the jury should have been instructed concerning the form of the marijuana, any error was harmless in light of the foregoing.

Count 5 alleges that defendant illegally possessed marijuana "[o]n or about November 15, 2000," the date on which defendant was searched in Foresthill pursuant to a second warrant. Police found a marijuana pipe in defendants pocket, together with a small cellophane baggie of marijuana in defendants pocket, containing what the criminologist later testified was 1.18 grams of marijuana, a usable amount.¹¹

11 The Attorney General and defendant mistakenly refer to the pipe in count 4 as the one involved in count 5, but the pipes are clearly distinct.

Thus, because neither counts 4 nor 5 involved residue not usable in form, defendant could not have been prejudiced by the courts failure to modify CALJIC No. 12.00 so as to instruct the jury that a controlled substance must be in a usable form.

2. The Methamphetamine Conviction (Count 2).

Count 2 alleges that on or about October 24, 2000, defendant possessed methamphetamine, which charge was based on the substance found in a hollow pen in defendants room at the Archer house. The criminalist testified that the white powder removed from the interior of the hollow pen contained 0.01 grams of methamphetamine, which, he said, was a usable quantity.

Defendant argues that "[t]his did not establish that [defendant] possessed it in a usable form" because "[i]f it took a trained criminalist with laboratory tools to extract and assemble the residue into a 0.01 gram pile, it is likely that the substance was not in a usable form when [defendant] possessed the pen."

However, the methamphetamine contained in the hollow pen was neither minute in amount nor useless for consumption. The facts here are unlike those in Leal, in which the heroin crystals encrusted on the spoon — which was in defendants possession — had been heated and were no longer in a "form" suitable for use. Here, once removed from the pen, the methamphetamine that coated the pens interior surface was in its normal form for personal use, i.e., powder, and of a usable quantity. The omitted instruction concerning the form of the methamphetamine had no relevance; only the quantity, about which the jury was instructed, was relevant.

Where the controlled substance remains in its normal form for personal use, Leals prohibition on basing a possession conviction on an unusable drug residue does not apply. (People v. Wesley (1986) 177 Cal.App.3d 397, 400 [both remains of heroin and cocaine possessed were in the "normal form" for personal use]; People v. Morales (1968) 259 Cal.App.2d 290, 295 [heroin possessed was in "its normal powdery form in a condition and of a quality for immediate use"].)

Moreover, defendants conviction for methamphetamine possession in count 2 did not depend solely on the presence of the remaining methamphetamine inside the pen found in defendants room at the Archer house.

Conviction of possession of an illegal drug does not require that the defendant be in possession of the substance at the time of arrest: Even if the police find no drugs in defendants immediate possession, his conviction can be sustained so long as there is evidence of possession within the period of the applicable statute of limitations, because "the narcotics possession statutes do not require proof of possession at the very time of arrest." (People v. Palaschak (1995) 9 Cal.4th 1236, 1238, 1242 (Palaschak).)

As the Supreme Court explained in Palaschak, some cases (including Leal) have held "that evidence of drug ingestion, such as nonusable residue or traces of narcotics, is insufficient to sustain an unlawful possession charge" (Palaschak, supra, 9 Cal.4th at p. 1239), but those cases largely reflect the notion that a conviction for possession should not be based solely on evidence of ingestion. (Id. at pp. 1240, 1241.) In contrast, the non-ingestion cases have not required immediate possession: When "the evidence showed that the defendant was in possession of an illegal drug which he destroyed by flushing it down the toilet, it is clear that defendant nonetheless could be convicted of illegal possession based on evidence (whether direct or circumstantial) that the substance was in his possession immediately before he was arrested." (Id. at p. 1241.)

Thus, the court in Palaschak reasoned, "[W]e see no reason why a drug possession charge could not be based on direct or circumstantial evidence of past possession. . . . [¶] . . . [& para;] . . . If . . . direct or circumstantial evidence establishes that the defendant possessed an illegal drug during the period of the applicable statute of limitations, no compelling reason appears why that evidence should not be sufficient to sustain a possession conviction." (Palaschak, supra, 9 Cal.4th at p. 1242.)

In view of Palaschak, whether the methamphetamine found inside the pen at the time of the search of defendants room was in a usable "form" was not essential to defendants methamphetamine conviction. Extensive direct evidence — in the form of testimony by Grace, Jennifer D., and Jennifer Roberts, with whom defendant shared his drugs — supported the jurys conclusion that defendant had possessed usable quantities of methamphetamine during the relevant period. Given the verdicts in this case, there can be no reasonable doubt that the jury credited this testimony and that the methamphetamine possessed by defendant well exceeded the 0.01 gram left in the hollow pen. That some methamphetamine in powder form was left behind inside the hollow pen found in his room merely provided additional evidence that defendant had possessed methamphetamine in usable form. In light of the compelling evidence of defendants recent past possession of usable amounts of methamphetamine, defendant cannot have been prejudiced by the courts failure to instruct the jury that it must find that the methamphetamine in the hollow pen must be usable in form.

In any event, we are convinced that the powder methamphetamine remaining inside the hollow pen was sufficient, by itself, to sustain defendants possession conviction in light of the criminalists testimony that it was a usable quantity; its form was not at issue. There was no error.

III.

Substantial Evidence Supports Defendants Convictions on Counts 2, 8, and 12

Defendant argues that his convictions on counts 2, 8, and 12 must be reversed because they are not supported by substantial evidence.

In reviewing defendants claims regarding the sufficiency of the evidence, we must "review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence — that is, evidence which is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578; People v. Kipp (2001) 26 Cal.4th 1100, 1128.) We use the same standard when circumstantial evidence is reviewed. (People v. Bean (1988) 46 Cal.3d 919, 932.) And it is the jury, not the appellate court, which must be convinced of the defendants guilt beyond a reasonable doubt. (Id. at p. 933.) Thus, before a judgment of conviction can be set aside for insufficiency of the evidence, it must clearly appear that upon no hypothesis whatsoever is there substantial evidence to support it. We "`view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.]" (People v. Johnson, supra, 26 Cal.3d at pp. 576-577.)

A. Substantial Evidence Supports Defendants Conviction on Count 2 for Possession of Methamphetamine

Count 2 alleges defendant possessed methamphetamine on or about October 24, 2000. That charge is based on the methamphetamine "that was found inside and snorted with the [hollow] pen," as argued by the prosecution.

Defendant contends that the "evidence was insufficient to support a conviction, because the methamphetamine was found in a state of useless residue coating an ingestion device" and "because there was insufficient evidence that [defendant] knew of its presence and nature as a usable controlled substance."

"The essential elements of possession of a controlled substance are `dominion and control of the substance in a quantity usable for consumption or sale, with knowledge of its presence and of its restricted dangerous drug character. Each of these elements may be established circumstantially. [Citations.]" (Palaschak , supra, 9 Cal.4th at p. 1242.)

Possession can be established by either actual possession or constructive possession. (People v. Austin (1994) 23 Cal.App.4th 1596, 1608-1609, disapproved on other grounds in People v. Palmer (2001) 24 Cal.4th 856, 861-867.)

In this instance, since the hollow pen, which was found to contain methamphetamine, was not on defendants person, the basis for his conviction was constructive possession. The pen was found, among his other personal effects, in the room that defendant rented from Mrs. Archer. Until his eviction, defendant had dominion and control over the premises where the hollow pen containing the methamphetamine powder was found. This is sufficient to establish that defendant had constructive possession of the methamphetamine. (See People v. Rushing (1989) 209 Cal.App.3d 618, 622.)

We next turn to whether the evidence was sufficient to show the substance was in a usable quantity. As we have explained, the presence of the drug alone will not be sufficient to sustain a conviction if the drug is present only in useless trace amounts. (People v. Rubacalba, supra, 6 Cal.4th at p. 66; Leal, supra, 64 Cal.2d at pp. 510-512.)

But we have already rejected defendants argument that "the methamphetamine was found in a state of useless residue[,] coating an ingestion device." (See Discussion, part II, ante.) The methamphetamine found to coat the interior of the pen was not "useless"; once removed from the interior of the pen, it remained in its original powdery form, capable of consumption and usable in amount, according to the criminalist.

Defendants next argument — that there was insufficient evidence that defendant "knew that there was a usable quantity of methamphetamine residue on the interior wall of the pen" — also fails. First, the testimony of Grace, Jennifer D., and Jennifer Roberts that defendant possessed and supplied methamphetamine during the relevant period provides some circumstantial evidence that he knew that a device used for using methamphetamine still contained limited amounts. It was reasonable to infer that defendant did not believe the pen had been "snorted clean." Second, the remaining methamphetamine lining the hollow pen was circumstantial evidence of a greater amount possessed in the pen (over which defendant had dominion and control) before the drug was used. Thus, even if defendant did not know that any methamphetamine was left in the pen — an unreasonable inference — he certainly knew there was methamphetamine in the pen before it was used.

B. Substantial Evidence Supports Defendants Conviction on Count 12 for Furnishing Methamphetamine to Lucy

Defendant contends that insufficient evidence supports his conviction on count 12 for furnishing methamphetamine to Lucy at the Valentines Day party. He bases this on Lucys testimony that she did not know who provided the methamphetamine in the pipe that was being passed around at the party. Instead, defendant argues, another guest, Tammy, persuaded Lucy to smoke from the methamphetamine pipe, and thus there was "insufficient evidence to prove that [defendant] furnished methamphetamine to Lucy."

First, whether Lucy was aware of the ultimate source of the methamphetamine is immaterial. Grace testified that defendant supplied the methamphetamine for the guests at the party. The testimony of one witness is sufficient to sustain defendants conviction. (See People v. Barnes (1986) 42 Cal.3d 284, 306.)

Second, as we pointed out in part I of the Discussion, ante, because defendant supplied the methamphetamine and authorized its use by the girls at the party, including Lucy, he unlawfully "furnished" the methamphetamine to Lucy.

C. Substantial Evidence Supports Defendants Conviction on Count 8 for Furnishing Alcohol to Jennifer D.

Count 8 alleged that on or about and between August 1, 2000 and October 21, 2000, defendant furnished alcohol to a person under 21 years of age, who was identified in the jury instructions as Jennifer D.

At trial, Grace testified that when Jennifer D. accompanied her to defendants room at the Archer house at the beginning of the school year, the girls both used alcohol, "pot," and "crank," and that all of these items were furnished by defendant.¹² Grace gave similar testimony about the October 21 party at Jennifer D.s house, i.e., that "everybody" there consumed methamphetamine, marijuana, and alcohol furnished by defendant.¹³

12 "Q: During that period of time, the beginning of the school year, September, October, how many times did you and Jen [Jennifer D.] go over to his apartment?
"A: A couple.
"Q: When you were there, would you guys use the same kind of stuff, alcohol?
"A: Yeah.
"Q: Pot?
"A: Yeah.
"Q: And crank?
"A: Yeah.
"Q: And were all of these items furnished to you by the defendant?
"A: Yeah."

13 "Q: At Jens house did you do crank and marijuana?
"A: Yeah.
"Q: And alcohol as well?
"A: Yeah.
"Q: Who furnished those items to you?
"A: The defendant. [¶] . . . [¶]
"Q: And as far as people being there, it was the defendant, Jen Roberts, yourself, Lila, Jen [D.] and Danielle[,] correct?
"A: Yeah.
"Q: Did everybody there partake in methamphetamine to your knowledge?
"A: Yes.
"Q: What about pot?
"A: Yeah.
"Q: What about alcohol?
"A: Yeah.
"Q: And all three of those substances were furnished to the girls by the defendant?
"A: Yeah."

Defendant contends that this testimony "did not establish, with solid substantial evidence, that Jennifer D. was included within the group" who consumed the alcohol, in view of Jennifer D.s own testimony that she "didnt drink. Im not much into drinking but there was weed and if people chose to drink they chose to drink."

However, even if we construe Jennifer D.s testimony that she "didnt drink" as an emphatic denial that she ever consumed alcohol provided by defendant, Graces general testimony that "everybody" drank and that at the beginning of the school year she and Jennifer "use[d]" alcohol in defendants room provided sufficient evidence. The jury, not this court, determines the credibility of Jennifer D.s denial for purposes of the issue of substantial evidence. (People v. Bean, supra, 46 Cal.3d at p. 933.) Thus, Graces testimony was sufficient, given that any contrary conclusion is a matter of the jurys judgment over the witnesses credibility.

In any event, defendants conviction for furnishing alcohol to Jennifer D. does not require that she have consumed it. As we have explained (see Discussion, part I.B., ante), furnishing alcohol to minors requires only that the adult have control over it and that the adult authorize its use by minors. (Sagadin, supra, 175 Cal.App.3d at p. 1158.) Although the operative statute also provides that a minor may violate the statute by buying alcohol or consuming it on an "on-sale premises" (Bus. & Prof. Code, § 25658, subd. (b)), the portion of the statute that prohibits an adult from furnishing the alcohol to a minor does not require that the minor consume it. (Bus. & Prof. Code, § 25658, subd. (a).) The evil to be prevented by that part of the statute lies not in the minors consumption of the alcohol, but in the adults taking "some affirmative step to supply it" to the underage drinker.

Accordingly, defendants challenge to his conviction on count 8 fails.

IV.

The Trial Courts Failure to Instruct on Accomplice Testimony Does Not Require Reversal

Defendant contends that the "evidence established that several prosecution witnesses were accomplices" and that therefore the trial court "erred by failing to give sua sponte accomplice instructions." Defendant identifies four witnesses — Connie Archer, Grace, Jennifer D., and Jennifer Roberts — as accomplices to his own crimes and argues that their testimony should have been subject to the cautionary rules governing accomplice testimony.

We conclude that Connie Archer, Grace, and Jennifer D. were not accomplices, and that even assuming that Jennifer D. and Jennifer Roberts could arguably be deemed accomplices, any error by reason of the failure to give cautionary instructions as to their testimony was harmless.

Penal Code section 1111 provides: "A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. [¶] An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given."

"Whether a person is an accomplice within the meaning of [Penal Code] section 1111 presents a factual question for the jury `unless the evidence permits only a single inference. [Citation.] Thus, a court can decide as a matter of law whether a witness is or is not an accomplice only when the facts regarding the witnesss criminal culpability are `clear and undisputed. [Citations.]" (People v. Williams (1997) 16 Cal.4th 635, 679.)

If there is sufficient evidence that a witness is an accomplice, "`the trial court is required on its own motion to instruct the jury on the principles governing the law of accomplices, including the need for corroboration. [Citations.]" (People v. Tobias (2001) 25 Cal.4th 327, 331, and cased cited therein.) Jurors are also instructed to "view[] with caution" the testimony of accomplices called by the prosecution (see People v. Guiuan (1998) 18 Cal.4th 558, 569) because "such witness has the motive, opportunity, and means to help himself at the defendants expense . . . ." (Id. at p. 567.)

We consider each of defendants claims that particular prosecution witnesses were accomplices, whose testimony against him should have been subject to a sua sponte instruction on accomplice testimony.

A. Connie Archer Was Not an Accomplice to Count 1

Defendant was charged in count 1 with violating Health and Safety Code section 11366, which makes it a crime to open or maintain "any place for the purpose of unlawfully selling, giving away, or using" specified controlled substances. He contends that Connie Archer was an accomplice to this offense because "she had reason to believe that a room in her home was being used as a place for the unlawful use of controlled substances by minors, but did not immediately notify authorities, nor . . . immediately seek eviction."

Thus does defendant claim that Connie Archers temporary inaction in ending the drug use in his room made her an accomplice to his crime.

"The statute [(Health and Safety Code section 11366)] is aimed at places intended to be utilized for a continuing prohibited purpose, and a single or isolated instance of misconduct does not suffice to establish a violation. [Citations.]" (People v. Vera (1999) 69 Cal.App.4th 1100, 1102.) A violation of Health and Safety Code section 11366 may be committed "by opening or maintaining a place for the sole purpose of unlawfully `using, as opposed to `selling or `giving away, specified controlled substances or narcotic drugs. However, regardless of which of those prohibited purposes is actually involved, the place is intended to be provided to others for that prohibited purpose." (People v. Vera, supra, at p. 1103; see also People v. Green (1988) 200 Cal.App.3d 538, 544-545.)

But in this case, there was no evidence that Connie Archer "open[ed] or maintain[ed]" — in the words of the statute — defendants room for purposes of unlawfully using any controlled substances. (Health & Saf. Code, § 11366.) There was also no evidence that she had any such purpose or intention in renting the room to defendant, or in not evicting him. To the contrary, Archer testified that she "was looking for someone to rent" the last empty room upstairs when a current tenant recommended defendant and before she agreed to allow defendant to be a tenant, she told him that drug use was not permitted.

Defendant nonetheless argues that Archer is equally liable for maintaining a place for defendant and his friends to use drugs because "she had personal knowledge that teenaged girls were coming to her house to use drugs, and that such unlawful activity was occurring under her roof."

But the evidence does not establish such "personal knowledge" on Archers part. True, Archer testified that she occasionally smelled the odor of marijuana outside defendants room. And she began to suspect that the underage girls who were visiting defendant might be using marijuana in defendants room. But she also testified that the girls sometimes smelled of marijuana as they arrived to visit defendant, that she never actually saw any drug use in defendants room, and that she did not call the police before defendant was evicted because she "didnt have proof."

More important, the evidence fails to establish that Archer shared defendants purpose in maintaining his room as a place where the girls could use drugs. To the contrary, defendants tenancy lasted less than two months before Archer told him that he would have to leave. And during that relatively brief time, Archer took various steps to discourage or prevent the girls from returning to visit defendant: She told defendant that she "didnt think it was a good idea that underage children" were in his room; she told the girls directly that she did not think that they should be visiting defendant alone and asked if their mothers knew that they were there; she called the neighboring high school and asked the school to stop the girls from coming to her house during school hours; and she spoke to the mother of one or more of the girls. Once defendant quit his room and she was able to enter it and see the "proof," Archer immediately contacted police and showed them what she had found.

This evidence points unambiguously to the single conclusion that Archer did not share defendants purpose of maintaining a place where he could provide drugs to the underage girls. Thus, as to Archer, the trial court did not err in failing to give cautionary instructions regarding accomplice testimony.¹⁴

14 Defendants citation in his reply brief to the concurring and dissenting opinion of Chief Justice Bird in Langford v. Superior Court (1987) 43 Cal.3d 21, at page 41, that Health and Safety Code section 11366 is directed at landlords who knowingly allow their properties to be fortified to further the sale of drugs, is a reference to mere dicta, was not intended as a discussion of the elements of that statute, and does not assist him.

B. Grace Was Not an Accomplice to Count 1

Defendant next contends that Grace was an accomplice to the offense of maintaining a place for the unlawful use of drugs pursuant to count 1 because she "helped him paint his room" when he moved in and "invited friends there . . . with the obvious expectation that they would be offered and would use drugs there."

Again, Health and Safety Code section 11366 punishes "[e]very person who opens or maintains any place for the purpose of unlawfully selling, giving away, or using any controlled substance . . . ."

Construing the language of that statute, one court has opined: "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." (People v. Vera, supra, 69 Cal.App.4th at p. 1103.)

There was no evidence from which a finder of fact could conclude that Grace was guilty of maintaining defendants rented room as a place for ingesting illegal drugs, or in aiding and abetting that maintenance. Not only did Grace not rent the room from Connie Archer, but there was no evidence that she lived in the room or had dominion and control over the room, its contents, or the activities that transpired there. And although defendants clothing and belongings were found in the room after defendant received his eviction notice, there was no evidence that any of Graces belongings were there. Nor did Grace supply any of the drugs ingested there. And painting a room is not the kind of "maintenance" of a place that the Legislature intended by the statute to prohibit. (See People v. Vera, supra, 69 Cal.App.4th at p. 1103.) Instead, the maintenance must be "for the purpose of unlawfully selling, giving away, or using any controlled substance." (Health & Saf. Code, § 11366.)

Defendant cites us to no authority for the proposition that a guest or visitor to a place provided by another for the purpose of using drugs that are supplied by another can be herself liable under Health and Safety Code section 11366, by virtue of her use of the drugs at the place.

However, defendant suggests that "[b]y inviting others to come use drugs at the premises, and by offering others drugs there, it seems clear that Grace was aiding and abetting the illegal use of the premises as a drug house." But an aider and abettor must act with the intent or purpose of committing, encouraging, or facilitating the offense, that is, the opening or maintaining of a place for the purpose of unlawfully using a controlled substance. (See People v. Beeman (1984) 35 Cal.3d 547, 561.) Graces act of inviting friends to defendants place neither opened nor maintained the room for the illicit purpose. Grace was simply not an accomplice to the offense of opening or maintaining a place for the purpose of using illegal drugs.¹⁵

15 For the same reasons, we reject defendants contention that Grace was an accomplice to defendants furnishing methamphetamine (count 15), marijuana (count 16), and alcohol (count 17) to Lila. Defendant argues that "[b]ecause . . . there was evidence to establish that Grace was aiding and abetting in maintaining [defendants] room as a place for consumption of controlled substances, she was likewise an accomplice in the victimization of Lila." Since we have disagreed with the premise, we disagree with the conclusion. In any event, our discussion in subsection C., post, that Grace was not an accomplice to furnishing those substances to Jennifer D. also supports the conclusion that Grace was not an accomplice in supplying those substances to Lila.

C. Grace Was Not an Accomplice to Counts 6, 7, and 8

In counts 6 through 8, defendant was charged with furnishing methamphetamine (count 6), marijuana (count 7), and alcohol (count 8) to Jennifer D. Defendant argues that Grace was an accomplice to these charged offenses because she invited Jennifer D. to defendants room, and "one can reasonably infer that she did so knowing that Jennifer D. would be offered drugs and alcohol."

As a matter of law, Grace cannot be an accomplice to the crime of furnishing methamphetamine (in violation of Health and Safety Code section 11380, subdivision (a)) or furnishing marijuana (in violation of Health and Safety Code section 11361, subdivision (b)) to a minor. To be an accomplice with respect to whom accomplice instructions are required, Penal Code section 1111 requires that Grace have been "liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given" (Pen. Code, § 1111, italics added).

Grace could not have been prosecuted for violating either Health and Safety Code section 11380, subdivision (a), or section 11361, subdivision (b): Both statutes criminalize acts committed by a "person 18 years of age or over," and Grace was 15 when these offenses were committed.

Nor could Grace have been an accomplice to count 15 — furnishing alcohol in violation of Business and Professions Code section 25658, subdivision (a). Although the statutes plain language does not expressly prohibit such conduct by adults only — in that it punishes "every person who sells, furnishes, gives, or causes to be sold, furnished, or given away, any alcoholic beverage to any person under the age of 21 years" (Bus. & Prof. Code, § 25658, subd. (a), italics added) — it expressly protects only those under the age of 21. "It has long been settled that where a penal statute expressly outlaws conduct against minors, a minor who is a victim of the proscribed conduct is not an accomplice and the jury need not be instructed that the minors testimony requires corroboration." (People v. Mena (1988) 206 Cal.App.3d 420, 425; see also People v. Montalvo (1971) 4 Cal.3d 328, 331; People v. Poindexter (1958) 51 Cal.2d 142, 149-150.)

The rationale underlying this rule is that prosecution of the protected minor by virtue of his or her cooperation with the defendant would be inconsistent with the purpose of the law, which is to protect the minor. (Cf. In re Meagan R. (1996) 42 Cal.App.4th 17, 25-27.)

Because the minor, even a willing participant in the defendants conduct, is a victim and cannot be prosecuted as an accomplice, accomplice instructions are not appropriate. (People v. Mena, supra, 206 Cal.App.3d at p. 425.)

Defendant suggests, however, that Grace could be an accomplice by aiding and abetting the victimization of others. But the foregoing rule against prosecuting minors has been applied even where two minors were simultaneously involved in the illegal activity with the adult, who subsequently sought to characterize one of the minors as an accomplice in the victimization of the second. In People v. Poindexter, supra, 51 Cal.2d 142, the defendant, who was convicted of the murder of one minor (as a result of a heroin overdose) and of furnishing heroin to a second minor, argued that the second minor was an accomplice to defendants furnishing of drugs to the first. (Id . at p. 149.) Our state Supreme Court rejected the argument: "[N]either person to whom defendant furnished narcotics was an accomplice of defendant as to the underlying offenses of selling, furnishing and administering the narcotics to said persons. [Citation.] To be an `accomplice within the meaning of [Penal Code section 1111], one `must stand in the same relation to the crime as the person charged therewith and must approach it from the same direction. [Citation.] Furthermore, both [the surviving minor] and the deceased were minors to whom defendant feloniously sold, furnished and administered the narcotics. In the prosecution for such offenses, the minors are regarded as victims rather than as accomplices, and the testimony of the minors therefore does not require corroboration. [Citations.]" (Id. at pp. 149-150.) Thus, defendants argument is unavailing.

Moreover, defendants reliance on People v. Tobias, supra, 25 Cal.4th 327, for the proposition that Grace "was an accomplice to the extent that she aided and abetted the victimization of other minors" similarly fails. In Tobias, our Supreme Court addressed the issue of whether a child under 18, who had a consensual relationship with a parent is, like the parent, guilty of incest, and therefore an accomplice to the parents crime. (Id. at p. 329.) The court concluded, after much analysis, that such a child is a victim and not a perpetrator, and this conclusion persisted even when the child consented to the sex. (Id. at pp. 331-338.) "In short, the law puts the burden on the adult, not the minor child, to refrain from a sexual relationship. Therefore, a child in this situation can never be an accomplice, and accomplice instructions are not appropriate." (Id. at p. 329.) The same point applies here.¹⁶

16 Defendant also relies on In re T.A.J. (1998) 62 Cal.App.4th 1350, which applied the criminal prohibition against statutory rape to a minor. But the Supreme Court in People v. Tobias, supra, 25 Cal.4th at page 334, characterized this decision as a possible exception to the general rule that a minor who is a victim of a crime against minors is not an accomplice, reasoning that where two minors engage in unlawful consensual sexual intercourse, "both are victims of the others crime."

Accordingly, as a minor to whom defendant illegally furnished methamphetamine, marijuana, and alcohol, Grace cannot be deemed an accomplice to defendants furnishing of those substances to Jennifer D. Otherwise, the very victims of the crimes, against which the law was intended to protect, could be chilled from coming forward and testifying against the perpetrator, for fear of being liable as an accomplice.

D. Jennifer D. Was Not an Accomplice to Counts 9, 10, 11, 15, 16, and 17

Defendant was charged with furnishing methamphetamine (count 9), marijuana (count 10), and alcohol (count 11) to Grace, and with furnishing methamphetamine (count 15), marijuana (count 16), and alcohol (count 17) to Lila.

On appeal, defendant argues that Jennifer D. "was an accomplice in the victimization of the other minors," as alleged in those counts, "because she provided the premises for the unlawful consumption of drugs, and she may have been the one who actually supplied the alcohol consumed there." Jennifer D.s house was used for one of the parties.

For the same reasons that Grace cannot be deemed an accomplice to defendants furnishing of methamphetamine, marijuana, or alcohol to Jennifer D., Jennifer D. cannot be deemed to be an accomplice to defendants furnishing of methamphetamine, marijuana, or alcohol to Grace or Lila. (See Discussion, part IV.C., ante). "It has long been settled that where a penal statute expressly outlaws conduct against minors, a minor who is a victim of the proscribed conduct is not an accomplice and the jury need not be instructed that the minors testimony requires corroboration." (People v. Mena, supra, 206 Cal.App.3d at p. 425.)

E. Any Failure to Instruct that Jennifer D. Was an Accomplice to Count 2 Was Harmless

Defendant contends that Jennifer D. was an accomplice to the crime of possession of methamphetamine pursuant to count 2 (based on the methamphetamine in the hollow pen) because Jennifer D.s trial testimony shows that she "used the [hollow] pen to snort drugs into her nose, and left residue on the interior wall of the pen. Since she was instrumental in placing the drug there, she was an accomplice in the offense of simple drug possession."

But an essential element of possession of a controlled substance is "`dominion and control of the substance in a quantity usable for consumption or sale." (Palaschak, supra, 9 Cal.4th at p. 1242.) The only evidence adduced at trial concerning Jennifer D.s possession of methamphetamine was that she ingested it. Evidence of ingestion, without more, generally will not support a charge of possession: "[I]t is arguable that not all occasions of drug use necessarily and inevitably involve criminal possession. For example, depending upon the circumstances, mere ingestion of a drug owned or possessed by another might not involve sufficient control over the drug . . . to sustain a drug possession charge." (Palaschak, supra, 9 Cal.4th at p. 1241; People v. Morales (2001) 25 Cal.4th 34, 44 ["[W]e did not state in Palaschak that evidence of being under the influence of a contraband substance, or other evidence of having introduced it into ones body, is by itself proof of present or past possession. And it is not"].)

In any event, any error was harmless. Had the trial court deemed Jennifer D. an accomplice, the jury would have been instructed that it could not convict defendant based upon her uncorroborated testimony and that it should view her testimony with caution. (See People v. Tobias, supra, 25 Cal.4th at p. 331; People v. Guiuan, supra, 18 Cal.4th at p. 569.) But if there is sufficient corroboration of the accomplices testimony by other evidence, the failure to give accomplice instructions is harmless. (People v. Miranda (1987) 44 Cal.3d 57, 100, disapproved on other grounds in People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4.) "It has been recognized that the failure to instruct on accomplice testimony pursuant to [Penal Code] section 1111 is harmless where there is sufficient corroborating evidence in the record. [Citations.] The requisite corroboration may be established entirely by circumstantial evidence. [Citations.] Such evidence `may be slight and entitled to little consideration when standing alone." [Citations.] [Citations.] Moreover, `"only a portion . . . of the accomplices testimony need be corroborated" [citation] and it is `"not necessary that the corroborative evidence . . . establish every element of the offense charged." [Citations.] [Citation.] It is only required that the evidence `"`tends to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the [accomplice] is telling the truth." [Citation.]" (People v. Miranda, supra, 44 Cal.3d at p. 100; accord, People v. Zapien, 4 Cal.4th 929, 981-983.)

Here, both direct and circumstantial evidence corroborated Jennifer D.s testimony that defendant possessed methamphetamine during the relevant time period (on or about October 24, 2000): Grace so testified; there was powdered methamphetamine found in the hollow pen in defendants room; and there were photographs taken in defendants room showing lines of methamphetamine laid out on a table. Thus, although Jennifer D.s testimony was that she momentarily used the hollow pen to snort methamphetamine, there was substantial corroborating evidence that defendant possessed methamphetamine during the relevant period. Instructions to view Jennifer D.s testimony with caution and to require corroboration before it was considered would not have made any difference in the result.

"Moreover, even if there were insufficient corroboration, reversal is not required unless it is reasonably probable a result more favorable to the defendant would have been reached." (People v. Miranda, supra, 44 Cal.3d at p. 101.) So much independent evidence connected defendant with the commission of the crime that it is not reasonably probable that the result would have been any different had the jury disregarded Jennifer D.s testimony. (See id. at p. 100.) Any error was thus harmless.

F. Any Error in Failing to Instruct That Jennifer Roberts Was an Accomplice to Counts 6, 7, 9, 10, 15, or 16 Was Harmless

Jennifer Roberts, an adult, was present during the party at Jennifer D.s house, at which Jennifer D., Grace, and Lila consumed methamphetamine and marijuana. Roberts testified that defendant filled a pipe with marijuana and handed it to one of the girls, who passed the pipe among themselves.

Convicted of furnishing methamphetamine and marijuana to Jennifer D. (counts 6 and 7), Grace (counts 9 and 10), and Lila (counts 15 and 16), defendant contends on appeal that Roberts was an accomplice to those crimes because "Jennifer Roberts participated in this circular drug use. One can infer that the methamphetamine was passed around the circle in the same manner. By receiving the drug from one participant, and handing it on to the next, Roberts was a link in the circular chain, directly participating in furnishing these drugs for use by the minor participants. As such, she was an accomplice in the victimization of Grace, Jennifer D., and Lila."

It is clear that "handing over" ones own marijuana to a minor constitutes a violation of Health and Safety Code section 11361.¹⁷ (See People v. Shaffer (1960) 182 Cal.App.2d 39, 41, 43 [construing predecessor to Health & Saf. Code, § 11361]; Markham v. Superior Court of Los Angeles County (1958) 165 Cal.App.2d 385, 390 [construing predecessor to Health & Saf. Code, § 11361].)

17 Absent any testimony that methamphetamine was also "passed around," we decline defendants invitation to infer that it occurred.

Although we have found no cases that hold that handing someone elses marijuana to a minor gives rise to liability under Health and Safety Code section 11361, we shall assume for arguments sake that Robertss actions could be construed as "giving" marijuana within the meaning of the statute, which punishes an adult "who furnishes, administers, or gives, or offers to furnish, administer, or give, any marijuana to a minor 14 years of age or older . . . ." (Health & Saf. Code, § 11361, subd. (b), italics added.) We shall therefore assume that Roberts could be liable for prosecution of the same offense as defendant, and thereby be an accomplice within the meaning of Penal Code section 1111.

But, again, where there is sufficient corroboration of the accomplices testimony, the failure to give accomplice instructions is harmless. (People v. Miranda, supra, 44 Cal.3d at p. 100.) And Robertss testimony that defendant furnished the drugs consumed by the minors was sufficiently corroborated by Graces testimony that defendant furnished the methamphetamine and marijuana for the party at Jennifer D.s house. In light of this corroborating evidence, viewing Robertss testimony with caution would not have affected the verdict since all of the evidence in this case supported Robertss credibility.

Moreover, as we noted earlier, even if there were insufficient corroboration, reversal is not required unless it is reasonably probable that a result more favorable to the defendant would have been reached. (People v. Miranda, supra, 44 Cal.3d at p. 101.) Having reviewed the entire record, we are convinced that any failure to instruct the jury that Robertss accomplice testimony be viewed with caution or be corroborated was harmless.

V.

The Trial Court Did Not Abuse Its Discretion in Admitting Excerpts from Defendants Journal

The prosecutor moved in limine for permission to admit into evidence excerpts from defendants journals, which appear to be handwritten letters expressing his love for Lucy. The prosecutor argued that they showed defendants "romantic and sexual interest" in Lucy and provided a motive for his furnishing drugs to her.

Following a hearing, the trial court agreed that the journals were admissible: "The journals are circumstantial evidence of the defendants state of mind toward the minor in this case and that he had, at least regarding such minors, romantic ideations regarding this 13- or 14-year-old. [¶] The circle of evidence of the Peoples theory of the case, [sic] the evidence is not overly prejudic[ial] and will be admitted to show evidence of motive."

On appeal, defendant contends that the probative value of the journal entries "was tenuous at best," because "the People were unable to establish the time when these journal entries were made. Hence, the People could not establish that these things were written before rather than after the drugs and alcohol were (allegedly) given to Lucy." In addition, he argues that the entries were extremely prejudicial, in that they permitted the prosecutor "to paint [defendant] as a child molester in waiting, whose sexual intentions were thwarted by his arrest." Defendant concludes that although "[t]here is no question that [he] was involved in the possession and use of controlled substances," the prejudicial evidence could have affected whether the jury found him guilty of all offenses.

The rules pertaining to the admissibility of evidence are well settled: "Only relevant evidence is admissible [citations], and all relevant evidence is admissible, unless excluded under the federal or California Constitution or by statute. [Citations.] Relevant evidence is defined in Evidence Code section 210 as evidence `having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. The test of relevance is whether the evidence tends `"logically, naturally, and by reasonable inference" to establish material facts such as identity, intent, or motive. [Citations.] [Citation.] The trial court has broad discretion in determining the relevance of evidence [citations], but lacks discretion to admit irrelevant evidence. [Citations.]" (People v. Scheid (1997) 16 Cal.4th 1, 13-14; see Evid. Code, § 350.)

Evidence may be subject to exclusion "if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) "Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.] Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion `must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.] [Citation.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)

Defendants journal entries were relevant to establishing his motive in providing limitless drugs to the victims in this case, particularly Lucy, in light of the expert testimony that adults may give drugs to minors in order to break down their inhibitions concerning involvement in a romantic or sexual relationship. And that motive was relevant in this case to whether defendant actually furnished drugs to the minors or had not authorized their use. The jury could have reasonably concluded, based on the journal entries and other evidence, that defendant obtained the drugs and authorized their use at the various parties (that is, furnished them) as a way of ingratiating himself and winning the girls friendship.

True, the entries were undated. But in view of Lucys testimony that she was not friendly with defendant after the summer of 2000, the jury could reasonably have inferred that he wrote them around the time he lived on Lucys parents property or in the Gold Street apartment. She testified that he gave her drugs in both places.

Finally, the prejudicial effect of admitting defendants journal entries was extremely slight. The entries themselves were romantic, rather than predatory. They contained no overtly sexual images that might have prejudiced the jury, but reflected instead defendants emotional infatuation with Lucy. Nor were the journal entries the only evidence of defendants interest in teenage girls: Defendant gave the victims flowers, referred to Grace as his girlfriend, and declared a general preference for "younger women."

We conclude that the trial court did not abuse its discretion. Alternatively, in light of the slight prejudicial impact of the journal entries and the existence of other similar evidence, no miscarriage of justice resulted from the trial courts admission of the journal entries; thus, no reversal is required. (See People v. Rodrigues, supra, 8 Cal.4th at pp. 1124-1125.)

VI.

The Trial Court Did Not Err in Failing to Instruct Sua Sponte on the Lesser Included Offense of Contributing to the Delinquency of a Minor

Defendant contends that with regard to his convictions for furnishing methamphetamine and marijuana to the four victims, the trial court erred in failing to instruct sua sponte on the lesser included offense of contributing to the delinquency of a minor, which is defined by Penal Code section 272.¹⁸ Defendant argues that the jury might have found that he did not furnish drugs to the girls, but intended only to "cause or encourage the minor[s] to be unlawfully involved with drugs."

18 Penal Code section 272 states: "(a)(1) Every person who commits any act or omits the performance of any duty, which act or omission causes or tends to cause or encourage any person under the age of 18 years to come within the provisions of Section 300, 601, or 602 of the Welfare and Institutions Code or which act or omission contributes thereto, or any person who, by any act or omission, or by threats, commands, or persuasion, induces or endeavors to induce any person under the age of 18 years or any ward or dependent child of the juvenile court to fail or refuse to conform to a lawful order of the juvenile court, or to do or to perform any act or to follow any course of conduct or to so live as would cause or manifestly tend to cause that person to become or to remain a person within the provisions of Section 300, 601, or 602 of the Welfare and Institutions Code, is guilty of a misdemeanor and upon conviction thereof shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500), or by imprisonment in the county jail for not more than one year, or by both fine and imprisonment in a county jail, or may be released on probation for a period not exceeding five years.
"(2) For purposes of this subdivision, a parent or legal guardian to any person under the age of 18 years shall have the duty to exercise reasonable care, supervision, protection, and control over their minor child.
"(b)(1) An adult stranger who is 21 years of age or older, who knowingly contacts or communicates with a minor who is 12 years of age or younger, who knew or reasonably should have known that the minor is 12 years of age or younger, for the purpose of persuading and luring, or transporting, or attempting to persuade and lure, or transport, that minor away from the minors home or from any location known by the minors parent, legal guardian, or custodian, to be a place where the minor is located, for any purpose, without the express consent of the minors parent or legal guardian, and with the intent to avoid the consent of the minors parent or legal guardian, is guilty of an infraction or a misdemeanor.
"(2) This subdivision shall not apply in an emergency situation.
"(3) As used in this subdivision, the following terms are defined to mean:
"(A) `Emergency situation means a situation where the minor is threatened with imminent bodily harm, emotional harm, or psychological harm.
"(B) `Contact or `communication includes, but is not limited to, the use of a telephone or the Internet, as defined in Section 17538 of the Business and Professions Code.
"(C) `Stranger means a person of casual acquaintance with whom no substantial relationship exists, or an individual with whom a relationship has been established or promoted for the primary purpose of victimization, as defined in subdivision (e) of Section 6600 of the Welfare and Institutions Code.
"(D) `Express consent means oral or written permission that is positive, direct, and unequivocal, requiring no inference or implication to supply its meaning.
"(4) This section shall not be interpreted to criminalize acts of persons contacting minors within the scope and course of their employment, or status as a volunteer of a recognized civic or charitable organization.
"(5) This section is intended to protect minors and to help parents and legal guardians exercise reasonable care, supervision, protection, and control over minor children."

The People concede, and we agree, that contributing to the delinquency of a minor is a lesser included offense to the crimes of furnishing methamphetamine or marijuana to a minor. (See, e.g., People v. Superior Court (Fuller) (1971) 14 Cal.App.3d 935, 949; People v. Freytas (1958) 157 Cal.App.2d 706, 715.)

And the trial court "`has a sua sponte duty to instruct on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present and there is evidence that would justify a conviction of such a lesser offense. [Citation.]" (People v. Bradford (1997) 14 Cal.4th 1005, 1055.)

But that duty to instruct on a lesser included uncharged offense arises "`only if [citation] "there is evidence" [citation], specifically, `substantial evidence [citations], `"which, if accepted . . . , would absolve [the] defendant from guilt of the greater offense" [citation] but not the lesser [citation]." (People v. Waidla, supra, 22 Cal.4th at p. 733; People v. Memro (1995) 11 Cal.4th 786, 871; accord, People v. Breverman (1998) 19 Cal.4th 142, 154.)

We find no substantial evidence that would absolve defendant from guilt of the greater offenses, namely, furnishing methamphetamine and marijuana to the four victims, given our definition of "furnish." (See Discussion, part I, ante.) Defendant argues that he merely "countenance[d]" the girls illegal drug use. But having supplied the drugs at parties for the minors, he thereby authorized their use by the parties exclusive or virtually exclusive attendees — the minors — and thereby authorized their use. As we have discussed in part I of the Discussion, ante, he therefore furnished the drugs to the minors in violation of the applicable statutes. As set forth in the factual summary, the evidence that defendant furnished methamphetamine and marijuana to the underage victims was extensive and unequivocal.

Accordingly, because there was no substantial evidence that would have absolved defendant of the charges that he furnished these drugs to the minors (see People v. Waidla, supra, 22 Cal.4th at p. 733), the trial court had no duty to instruct on the lesser included offense.

VII.

Health and Safety Code Section 11380.1 Does Not Violate Equal Protection

Health and Safety Code section 11380.1 imposes sentence enhancements for the crime of furnishing methamphetamine to a minor if the minor is "at least four years younger than the defendant."¹⁹ In this case, the jury found that the defendant was at least four years older than the four girls to whom he furnished the methamphetamine. The trial court accordingly imposed the enhancements.

19 Health and Safety Code section 11380.1 provides in relevant part:
"(a) Notwithstanding any other provision of law, any person 18 years of age or over who is convicted of a violation of Section 11380, in addition to the punishment imposed for that conviction, shall receive an additional punishment as follows: [& para;] . . . [¶]
"(3) If the offense involved a minor who is at least four years younger than the defendant, the defendant shall, as a full and separately served enhancement to any other enhancement provided in this subdivision, be punished by imprisonment in the state prison for one, two, or three years, at the discretion of the court.
"(b) The additional punishment provided in this section shall not be imposed unless the allegation is charged in the accusatory pleading and admitted by the defendant or found to be true by the trier of fact.
"(c) The additional punishment provided in this section shall be in addition to any other punishment provided by law and shall not be limited by any other provision of law.
"(d) Notwithstanding any other provision of law, the court may strike the additional punishment provided for in this section if it determines that there are circumstances in mitigation of the additional punishment and states on the record its reasons for striking the additional punishment."

Defendant contends on appeal that Health and Safety Code section 11380.1 violates constitutional equal protection principles by "draw[ing] an irrational distinction between youthful and older adult offenders based on age."

"While its precise meaning and application are not always clear, in general a denial of equal protection occurs when the state adopts a classification that affects similarly situated groups or individuals in an unequal manner." (People v. Bell (1996) 45 Cal.App.4th 1030, 1046; People v. Barrera (1993) 14 Cal.App.4th 1555, 1565.)

"`Statutes challenged under the equal protection clause will receive differing levels of scrutiny depending upon the nature of the distinctions they establish. Legislation which creates a suspect classification or impinges on the exercise of a fundamental right is subject to strict scrutiny and will be upheld only if it is necessary to further a compelling state interest. All other legislation will satisfy constitutional requirements if it bears a rational relationship to a legitimate state purpose. [Citations.] [Citation.]" (People v. Bell, supra, 45 Cal.App.4th at pp. 1046-1047.)

In People v. Olivas (1976) 17 Cal.3d 236 (Olivas), our Supreme Court declared that liberty is a fundamental interest and that classifications affecting it must satisfy the strict scrutiny test. In Olivas, the state high court applied that test and concluded on equal protection grounds that a misdemeanant between the ages of 16 and 21 could not be constitutionally committed to the Youth Authority for a term potentially longer than the maximum jail term that might be imposed for the same offense if committed by a person over the age of 21.

However, since Olivas, some courts have expressed uncertainty concerning the application of the strict scrutiny test to all legislation defining crimes or gradations of criminal activity (e.g., People v. Gonzales (2001) 87 Cal.App.4th 1, 13; People v. Goslar (1999) 70 Cal.App.4th 270, 276-277; People v. Applin (1995) 40 Cal.App.4th 404, 409), and others have questioned whether the court in Olivas intended to subject every Penal Code classification to strict scrutiny. (People v. Nguyen (1997) 54 Cal.App.4th 705, 720 (conc. opn. of Bamattre-Manoukian, J.); People v. Bell, supra, 45 Cal.App.4th at p. 1047; People v. Silva (1994) 27 Cal.App.4th 1160, 1167; People v. Davis (1979) 92 Cal.App.3d 250, 258.)

And some courts have applied the rational relationship standard to resolve equal protection challenges to penal statutes that have some effect on a defendants punishment. (See People v. Alvarez (2001) 88 Cal.App.4th 1110, 1115-1116, and cases cited there.)

We need not decide the correct standard here. Even if we were to apply the strict scrutiny test to Health and Safety Code section 11380.1, we would conclude that the statutes imposition of an enhancement where the defendant is more than four years older than the minor victim does not violate principles of equal protection. (People v. Gonzalez (1978) 81 Cal.App.3d 274.)

In People v. Gonzalez, supra, 81 Cal.App.3d 274, the court addressed an equal protection attack on Penal Code section 286, subdivision (c), which prescribes a more severe punishment for an act of sodomy when the victim is under 14 years of age and the defendant is more than 10 years older than the victim. (Id. at p. 276.) Citing Olivas, the court stated that the various classifications of offenders and levels of punishment defined by Penal Code section 286 implicated liberty interests and that it was necessary that they withstand a strict scrutiny analysis. (Id. at p. 277.) But it concluded that the test was satisfied in that case since there was a compelling interest in protecting children from sexual molestation by persons who were "materially more mature": "There is a compelling state interest in the protection of children from sexual molestation by persons who are materially more mature. Undeniably, there is a greater likelihood that a young child will succumb to the sexual blandishment of one who is much older than that the child will do so when the conduct is solicited by one close to the childs own age. There thus exists a compelling state interest to classify as a special category sexual misconduct of a materially older person where the victim of the conduct is a young child. Classifications based upon the ages of the victim and the offender are necessary to carry out the state interest." (Ibid.)

Defendant attempts to distinguish People v. Gonzalez, supra, 81 Cal.App.3d 274, by arguing that "[u]nlike sexual offenses with minors . . . the age of the drug supplier, be he a young adult or an older adult, is immaterial. The minor who receives drugs from an older offender is not harmed or endangered to any greater extent than the minor who receives drugs from a younger offender."

We disagree. The state has a compelling interest in the protection of children from older, more sophisticated adults, who would provide them with illegal drugs. Older individuals are more likely to have the resources to purchase substantial quantities of illegal drugs and paraphernalia (as in this case); they are more likely to be able to afford their own residence, and the privacy that it affords for purposes of sharing drugs with minors (as in this case); and they are more likely by virtue of their relative age and experience to be successful in encouraging drug use by minors. As courts have recognized in other contexts, "`[t]he public takes an extremely grave view of adults who furnish narcotics to minors . . . ." (People v. Williams (1991) 233 Cal.App.3d 407, 412 [reasonable mistake of age is not a defense to charge of selling cocaine to a minor].)

At least where the length of the sentence is at issue, "[o]nce the strict scrutiny test is met so as to justify a classification, the precise parameters drawn by the classification need only be rationally related to the interest protected. [Citation.] It is a legislative and not judicial function to draw statutory dividing lines where the classification is constitutionally permissible." (People v. Gonzalez, supra, 81 Cal.App.3d at pp. 277-278.)

The Legislatures recognition of the danger to minors posed by materially older adults who might furnish them with drugs is reflected in its determination that materially older adults who deal with minors should be punished by longer terms. The relationship between the Legislatures interest in protecting minors from that danger and the increased punishment for older adults is a rational one. Health and Safety Code section 11380.1 does not violate equal protection.

Finally and separately, it is important to understand that this case differs from the unconstitutional classification in Olivas, supra, 17 Cal.3d 236, where a juvenile offender was subject to a longer sentence than an adult convicted of the same offense. Here, the sentence differs, not because of the age of the offender, but because of the age difference between the adult offender and the minor victim. This is a bright-line basis for showing that the victim was particularly vulnerable to this type of crime. An adult significantly older than the minor is not necessarily similarly situated to an adult close enough to the minors age to be considered an equal. A violation of "the equal protection clause [requires] a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner." (In re Eric J. (1979) 25 Cal.3d 522, 530, italics added.) That is not the case where the age gap between the adult offender and the minor victim is materially significant, making the victim more vulnerable. Thus, in this case, the first prerequisite of an equal protection violation — that a classification affects two or more similarly situated groups — is arguably not satisfied here.

In any event, there is no violation of equal protection here even under a strict scrutiny analysis.

VIII.

The Trial Court Erred in Imposing Health and Safety Code Section 11380.1 Enhancements on Subordinate Terms

The jury found that the girls were at least four years younger than defendant, so as to make him eligible for the enhancements specified in Health and Safety Code section 11380.1, subdivision (a)(3), with respect to the charges that he supplied methamphetamine to Jennifer D. (count 6), Grace (count 9), and Lucy (count 12), and with respect to the charge that he encouraged Lila to use methamphetamine (count 15). The trial court selected count 6 as the principal term and imposed a two-year enhancement for defendants conviction on count 6. It then imposed the same two-year enhancement for each of the subordinate terms for furnishing methamphetamine or encouraging its use.

On appeal, defendant argues that the imposition of Health and Safety Code section 11380.1 enhancements on counts 9, 12, and 15 was prohibited by Penal Code section 1170.1, as it read at the time of his crimes.

He is correct. Subdivision (a) of Penal Code section 1170.1 then stated in relevant part that ". . . when any person is convicted of two or more felonies, . . . the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements for prior convictions, prior prison terms, and [Penal Code] Section 12022.1. The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any term imposed for applicable specific enhancements. The subordinate term for each consecutive offense which is not a `violent felony . . . shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction . . . and shall exclude any specific enhancements. . . ." (Italics added.)

At all relevant times, Penal Code section 1170.11 defined "specific enhancements" as used in Section 1170.1 to include "Section[] . . . 11380.1 . . . of the Health and Safety Code . . . ."²⁰

20 Penal Code section 1170.1 has since been amended to reflect the Legislatures changed view on the degree to which special enhancements should be imposed on subordinate terms: It currently provides that the subordinate term "shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses." (Pen. Code, § 1170.1, subd. (a); Stats. 2000, ch. 689, § 1.)

The Attorney General asserts that the trial court was entitled to disregard the limiting language of Penal Code sections 1170.1 and 1170.11, in view of what he characterizes as the "more specific" mandate of Health and Safety Code section 11380.1, which states (and then stated) in pertinent part: "(a) Notwithstanding any other provision of law, any person 18 years of age or over who is convicted of a violation of Section 11380, in addition to the punishment imposed for that conviction, shall receive an additional punishment as follows: [¶] . . . [¶] (3) If the offense involved a minor who is at least four years younger than the defendant, the defendant shall, as a full and separately served enhancement to any other enhancement provided in this subdivision, be punished by imprisonment in the state prison for one, two, or three years, at the discretion of the court. [¶] . . . [¶] (c) The additional punishment provided in this section shall be in addition to any other punishment provided by law and shall not be limited by any other provision of law." (Italics added.)

Penal Code sections 1170.1 and 1170.11 thus command that an enhancement pursuant to Health and Safety Code section 11380.1 not be imposed on a subordinate term. But subdivision (c) of Health and Safety Code section 11380.1 appears to direct the contrary, namely, that the enhancement authorized under that statute shall "not be limited by any other provision of law."

However, two canons of statutory construction give precedence to the command that the enhancements for the subordinate terms be excluded.

First, "[i]f conflicting statutes cannot be reconciled, later enactments supersede earlier ones [citation] . . . ." (Collection Bureau of San Jose v. Rumsey (2000) 24 Cal.4th 301, 310; People v. Moody (2002) 96 Cal.App.4th 987, 993.)

Based on that rule of statutory construction, Penal Code sections 1170.1 and 1170.11, and their (now former) limitation on imposing enhancements on subordinate terms, must prevail over Health and Safety Code section 11380.1, governing imposition of an enhancement. Section 11380.1 was enacted in 1993. Penal Code section 1170.11 was enacted in 1997 to define the "specific enhancements" that cannot be imposed upon a subordinate term, and specified Health and Safety Code section 11380.1 among them. (Pen. Code, § 1170.11, added by Stats. 1997, ch. 750, § 4.) Moreover, although Penal Code section 1170.1 was first enacted in 1976, it has been amended four times between 1993 (when Health and Safety Code section 11380.1 was enacted) and 2000 (when the crimes at issue were committed). (Pen. Code, § 1170.1, amended by Stats. 2000, ch. 689 § 1; Stats. 1998, ch. 925, § 4, ch. 926, § 2.5; Stats. 1997, ch. 750, § 3; Stats. 1994, ch. 146, § 166, ch. 1099, § 2, ch. 1187, § 3, ch. 1188, § 12.7.)

And this court has held that even though a statutory enhancement insists that it be imposed "notwithstanding any other provision of law" (Health & Saf. Code, § 11380.1), the enhancement may not be imposed contrary to Penal Code section 1170.1 (as then in effect) if, after the enhancement statute was enacted, it was added to Penal Code section 1170.11s list of specific enhancements. (People v. Moody, supra, 96 Cal.App.4th at p. 993.) Our past precedent thus settles the issue here.²¹

21 People v. Hernandez (1993) 18 Cal.App.4th 1840, 1846-1847 (Hernandez), cited by the Attorney General, does not persuade us to overrule our precedent in Moody. Hernandez, at pages 1843-1847, ruled that Penal Code section 1170.1 did not prohibit imposition on a subordinate term of an enhancement under Health and Safety Code section 11353.1, which is triggered by a four-year age differential between the defendant and the minor who is furnished the controlled substance. But the Hernandez court ruled on the fact that the enhancement statute there was the more specific and the later enacted statute, whereas here Penal Code section 1170.11 is the later enacted statute. Indeed, the Hernandez court never mentions Penal Code section 1170.11 and thus its analysis is incomplete.

Second, our interpretation that the enhancement does not apply to a subordinate term also conforms with the canon of statutory construction that in the case of a statutory ambiguity, courts are to resolve doubts as to the meaning of a criminal statute in a defendants favor. (People v. Bransford (1994) 8 Cal.4th 885, 895.)

We further conclude that the seemingly conflicting statutes can be reconciled by interpreting the language of Health and Safety Code section 11380.1 to speak generally about imposing the enhancement, but not specifically about the treatment of subordinate terms, which is expressly addressed by Penal Code section 1170.1. Reconciling the two statutes in favor of the express command governing the treatment of subordinate terms, specified in Penal Code sections 1170.1 and 1170.11, does not leave the language of Health and Safety Code section 11380.1 without meaning: The enhancement must still be imposed on the principal term, notwithstanding any law to the contrary, and the trial court so imposed it.

Accordingly, the enhancements on the subordinate terms imposed on counts 9, 12, and 15 pursuant to Health and Safety Code section 11380.1 should be stricken.

IX.

The Trial Court Erred in Imposing Sentences on Counts 4 and 5 for Possession of Less Than 28.5 Grams of Marijuana

Convicted of two counts (counts 4 and 5) of possessing less than 28.5 grams of marijuana in violation of Health and Safety Code section 11357, subdivision (b), defendant was sentenced on each of those two counts to a six-month term to run concurrently with the principal term on count 6.

Defendant contends on appeal that the two concurrent jail terms on counts 4 and 5 are unauthorized. The Attorney General concedes the issue.

We agree: Health and Safety Code section 11357, subdivision (b), provides that possession of less than 28.5 grams of marijuana "shall be punished by a fine of not more than one hundred dollars ($ 100)." It does not authorize a jail term.

However, the Attorney General urges us, without argument or explanation, to impose a $100 fine on count 4.

Defendant argues in reply that the imposition of such a fine, following a successful challenge on appeal, would violate constitutional prohibitions on double jeopardy.

However, "`when a trial court pronounces an unauthorized sentence[, s]uch a sentence is subject to being set aside judicially and is no bar to the imposition of a proper judgment thereafter, even though it is more severe than the original unauthorized pronouncement." (People v. Hanson (2000) 23 Cal.4th 355, 360, fn. 3, citing People v. Serrato (1973) 9 Cal.3d 753, 764, disapproved on other grounds in People v. Fosselman (1983) 33 Cal.3d 572, 583.)

The terms imposed on counts 4 and 5 are stricken, but the matter is remanded to the trial court for consideration of a fine.

X.

Defendants Sentence on Count 1 Must Be Stayed

Penal Code section 654, subdivision (a), states: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. . . ."

Penal Code section 654 applies equally to the penal provisions of the Health and Safety Code. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1583.)

Subdivision (a) of Penal Code section 654 has been found to "`preclude[] multiple punishment for a single act or for a course of conduct comprising indivisible acts. "Whether a course of criminal conduct is divisible . . . depends on the intent and objective of the actor." [Citations.] "[I]f all the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once." [Citation.] [Citation.]" (People v. Spirlin (2000) 81 Cal.App.4th 119, 129; People v. Latimer (1993) 5 Cal.4th 1203, 1207-1208.)

However, if the defendant harbored "multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct. [Citation.]" (People v. Cleveland (2001) 87 Cal.App.4th 263, 267-268; People v. Solis (2001) 90 Cal.App.4th 1002, 1021.)

Defendant contends that certain aspects of his sentence violate Penal Code section 654. We consider each contention in turn.

A. Defendants Convictions on Counts 4 and 5 Are Not Part of an Indivisible Course of Conduct

Defendant contends that his two convictions for possession of marijuana both "involved the same substance found in two different container[s] on [his] person, to wit: (1) a baggie containing marijuana and (2) a pot pipe containing marijuana." He concludes: "Since both convictions charged the same offense (simple possession) under the same code section (Health and Safety Code [section] 11357, subd[ivision] (b)) for the same controlled substance (marijuana), the offense cannot be subdivided."

The Attorney General agrees.

We do not. Count 4 alleged that defendant illegally possessed marijuana "[o]n or about October 24, 2000," the approximate date on which defendant vacated his room in the Archer house. His conviction on that count was supported by evidence of marijuana seized from defendants room in a white porcelain dish (0.84 grams) and from a marijuana pipe (0.11 grams).

In contrast, count 5 alleged that defendant illegally possessed marijuana "[o]n or about November 15, 2000," the approximate date on which defendant was searched in Foresthill pursuant to a second warrant. The evidence supporting that count was that police found a small cellophane baggie of marijuana (1.18 grams) in defendants pocket, together with a marijuana pipe.

Based on defendants possession of marijuana at two different time frames and in two different locations, his convictions on counts 4 and 5 are not duplicative, they are not incidental to a single objective, and they do not violate Penal Code section 654.

B. Defendants Punishment on Count 2 Is Not Duplicative of His Punishment on Count 6

Defendant contends that his punishment on count 2 for possession of methamphetamine must be stayed because it is duplicative of his punishment for providing methamphetamine to Jennifer D. (count 6), in that "both offenses involved the same criminal objective, i.e., to furnish methamphetamine to Jennifer D."

We disagree. Count 2 charged defendant with possession of methamphetamine, evidenced principally on the basis of the methamphetamine in the hollow pen. While it is true that Jennifer D. testified that she snorted methamphetamine using the hollow pen, the evidence also established that defendant used methamphetamine himself and that he furnished it to each of the minor victims.

The trial courts implicit finding that defendants criminal objective in possessing methamphetamine went beyond providing it to Jennifer D. to include (among other things) his own use and furnishing it to the other girls is supported by substantial evidence. Because substantial evidence shows defendant had multiple objectives in his possession of methamphetamine, Penal Code section 654 was not violated by reason of his furnishing some of it to Jennifer D.

C. Defendants Punishment on Count 1 Is Duplicative of His Punishment for Furnishing Methamphetamine and Marijuana to the Minors

Defendant contends that his punishment on count 1 — maintaining a place for using or furnishing drugs — must be stayed because it is duplicative of his punishment for the offenses of furnishing methamphetamine and marijuana to each of the four minors. We agree.

Keeping in mind that the focus of Penal Code section 654 is whether the defendant acted pursuant to a single intent and objective (People v. Avalos, supra, 47 Cal.App.4th at p. 1583), we note that defendant was found guilty in count 1 of violating Health and Safety Code section 11366, which criminalizes maintaining "any place for the purpose of unlawfully selling, giving away, or using" (italics added) specified controlled substances. "Corrupting and encouraging others by maintaining a place for drug abusers to gather and by furnishing drugs to them" is the "criminal objective" of a violation of Health and Safety Code section 11366. (People v. Green, supra, 200 Cal.App.3d at p. 544.)

Defendants criminal objective under count 1 — maintaining a place to furnish drugs to others — cannot be separated from the criminal objectives attendant to his violations of the statutes prohibiting furnishing various drugs to the minors: His objective in count 1 was to maintain a place where he could furnish drugs to minors, and he achieved that objective by actually furnishing drugs to minors.

Having been punished for each count of furnishing marijuana and methamphetamine to each of the four minor victims, punishing defendant for maintaining a place to commit those crimes violates Penal Code section 654.

Nor can the application of Penal Code section 654 be avoided on the ground that there were other potential victims under count 1 than the four minors specified in the other counts. The objective of furnishing a controlled substance to a named minor under the individual counts would still be subsumed in large part by count 1s objective of maintaining a place for furnishing drugs to them. In short, the objective of furnishing controlled substances to individual minors is indivisible from the objective of maintaining a place to furnish those substances to them and others. To avoid multiple punishments for an indivisible series of acts, either the sentence under count 1 must be stayed or the sentences for those individual counts that consummated count 1s objective must be stayed. Penal Code section 654 requires the former.

Defendants sentence on count 1 must be stayed.²²

22 Because we stay count 1, we need not address defendants additional argument requesting a stay because the punishments for counts 1 and 2 are duplicative.

DISPOSITION

The six-month concurrent terms imposed on counts 4 and 5, respectively, are stricken, and this matter is remanded for consideration of the imposition of a fine as punishment for those crimes. The two-year enhancements imposed pursuant to section 11380.1 on counts 9, 12, and 15, respectively, are also stricken. The eight-month consecutive term imposed on count 1 is stayed.

In all other respects, the judgment is affirmed. The matter is remanded for consideration of a fine under counts 4 and 5 and the preparation of an amended abstract of judgment.

We concur: RAY, Acting P.J., HULL, J.